If you would like more information about the program, and for an opinion on the E-Verify System, please go to the following address:

http://www.ffva.com/imispublic/Content/NavigationMenu2/NewsCenter/HarvesterOnline/TradeAssociateMemberUpdate1211/default.htm

With E-Verify being a hot topic in so many states, including Florida, agricultural employers need to assess their needs and ensure a legitimate and legal workforce is available – especially now in Florida when both strawberries and citrus is ripe for picking.

The bulk of the Reform applies to terminations occurring on August 1, 2011 or later.  The Reform is NOT  retroactive.

Former Employees who were terminated after August 1st, 2011, and who seek unemployment compensation benefits after August 1st 2011 are now required to participate in an initial skills review using an online education or training program as part of reporting for benefits;

Former Employees must now make a systematic and sustained effort to find work, and must contact at least five prospective Employers each week – or report in person to a One-Stop Career Center to meet with a representative for reemployment services each week; and,

Terminations occurring on or after August 1, 2011, former Employees must file claims by Internet at www.floridajobs.org, rather than by phone or mail.

The Reform changed the standard to reduce misconduct from “willful” (a very high standard indicating intent) to “conscious” (a lower standard).

“Misconduct” now can include the off-duty conduct of an employee.

The Reform adds a disqualification for any weeks in which an individual receives severance pay from an employer if the severance pay per week is equal to or greater than the former Employee’s weekly benefit amount, the former Employee is not entitled to benefits for that week.  There is no reduction in the amount of total unemployment compensation benefits (credits) that can be paid on the claim. For example, if the former Employee were determined eligible for $6,325 of available benefits (credits), the former Employee would still be eligible for that same amount unless your benefit year expires before the former Employee exhausts that total.

As for the revisions to the definition of “misconduct” under the reform now includes:

Former Employees can be disqualified for benefits misconduct in connection with a job whether or not the conduct happens at the workplace or during working hours;

Misconduct is no longer restricted to “a willful or wanton disregard of an employer’s interests,” but is now determined to be “a conscious disregard of an employer’s interests and found to be in deliberate violation or disregard of the reasonable standards of behavior which the employer expects of employees.”

Misconduct also now includes:

Chronic absenteeism or tardiness;

Willful and deliberate violation of a standard or regulation which would jeopardize the employer’s Florida license or certification; and,

Violation of an employer’s rule under certain circumstances.

The above is NOT an all-inclusive list of misconduct!

All individuals establishing a new unemployment claim, filing additional claims or reopening an existing claim on or after July 1, 2011 must receive benefits through either the new Florida Unemployment Compensation Debit Card or via direct deposit to the claimant’s bank account.

For more information about Florida’s new debit card system, see:

http://www.floridajobs.org/unemployment/UC_faqs_debitcard.htm

Significantly for Employers defending against unemployment compensation claims, the Reform repeals language which requires that unemployment laws be liberally construed in favor of a claimant.

Employers who have published and promulgated procedures in place, such as handbooks, will be in a better position to defend against claims where the Employee is terminated due to failure to follow the Employer’s policies.

In February of 2011, the NLRB and American Medical Response of Connecticut reached a settlement agreement in which the employer agreed to revise its social media policy to ensure that the policy did not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.  Again, this agreement is predicated on a collective bargaining agreement and the workplace being a union environment.  The employer revised the policy to show that employees would not be disciplined or discharged for engaging in such discussions on social media venues.

To review the actual settlement agreement between the NLRB and American Medical Response of Connecticut, go to:

http://www.minnesotaemploymentlawreport.com/NLRB%20Facebook%20Settlement.pdf

At least we now know social media handbook language that has been pre-approved by the NLRB.  This area of the law will continue to evolve.  With employees having social media at their fingertips via their smart phones, this area of employment law will continue to be hot.

DOL specifically agrees in the MOU “to assist ICE’s efforts … by providing ICE with timely and accurate information to allow for identification of overlapping enforcement activity.”ICE and DOL agree in the MOU “to create a means to exchange information to foster enforcement against abusive employment practices directed against workers regardless of status. ICE agrees to develop a means to refer to DOL information concerning violations of DOL’s civil work site authorities described in section III of this MOU.”  In other words, the Agencies will continue to share information as they have done in the past BUT now the Agencies are seeking ways in which to make the information sharing easier.  To review the MOU, go to http://www.dol.gov/_sec/media/reports/HispanicLaborForce/DHS-DOL-MOU.pdf.

The type of the information shared between ICE and DOL pursuant to the MOU is also the type of information easily shared with the new “fusion centers” being set up around the country to allow for monitoring of issues relevant to national security, which almost always impacts immigration related issues.  Without endorsing the site in any way, consider a visit to http://www.aclu.org/whos-spying-your-neighborhood-map for a listing of the fusion center in your neck of the woods.

The revised MOU shows a renewed interest by DOL and ICE in working together when auditing employers to enforce the laws currently on the books.  The political will does not appear to be for proposing new legislation to address immigration and employed related issues but instead is focused on getting the maximum mileage out of the laws currently in place.  In light of the hefty fines asserted against employers for technical violations of the Form I-9 and the Fair Labor Standards Act record keeping requirements (Abercrombie & Fitch was fined one million dollars late last year), self-audits and compliance efforts are in order.  Based upon this renewed interest by DOL and ICE in formalizing how the two Agencies will work together, and based upon the hiring of new agents by both ICE and DOL throughout the country, particularly here in Florida, I would hazard an educated guess that once an employer is visited by DOL, ICE will come knocking soon after.

In December of 2010, the Manatee School Board  and School District entered into an agreement with Manatee Education Association – the teacher’s union in Manatee County – to “stay” the proceedings before the Department of Administrative Hearings.  Based upon a Joint Motion filed by the parties, the case will be put on hold for a year because:

The parties have since conferred about the issues alleged in the Petition to Invalidate Proposed Rule and foresee that a resolution may be possible. However, settlement discussions between the parties may be ongoing for several months and, depending on whether the proposed rule is altered in the interim, the Petition may be mooted by subsequent changes.

To review the Motion, please use the following link:  http://www.doah.state.fl.us/docdoc/2010/009760/10009760M-121410-15094309.PDF

Resolution instead of a litigation is usually a good idea but in this case I was truly looking forward to see what an administrative law judge would do with a broadly worded and somewhat intrusive social media policy for public employees.  The issue may arise during bargaining between the parties – updates will be posted.  This area of the law continues to evolve; privacy rights must be balanced against an employer’s right to protect its reputation, or brand.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

Rudolph has an obviously different nose from the other reindeer; Rudolph’s nose is red and it glows.   Does Rudolph’s red nose make him a qualified individual with a disability?  Such an inquiry under the new ADA revolves around whether Rudolph’s red nose limits one or more of his major life activities. The potential mitigating factor of Rudolph’s awful black fake nose no longer matters.  Rudolph certainly has a record from birth of having a glowing red nose.  His reindeer training coaches and fellow Santa’s Sleigh trainees certainly regarded Rudolph as having an impairment – and treated him differently as a result by not letting him join in any reindeer games.  Even if Rudolph’s red nose did not materially impact his daily activities, perhaps his depression and post-traumatic stress from the differential treatment would qualify him under the ADA.  Does Santa provide an EAP that Rudolph could access?  Does Santa even offer health insurance benefits such that Rudolph could explore potential surgical correction of his red nose?  At the very minimum, I would think Rudolph could file an EEOC charge based upon being perceived as disabled.

Speaking of perceptions, Hermey the Elf is treated differently by his elf co-workers as a result of expressing his individuality.  There are hints of perceived sexual orientation discrimination due to the fastidious hairstyle and detectable lisp.  Sexual orientation discrimination is actionable in several counties in Florida, and quite possibly in the North Pole.  Does Hermey have an Oncale claim due to male on male discrimination and harassment?  Perhaps a claim under Title VII or the Florida Civil Rights Act is in order?  Hermey is treated differently by the Elf who I deem the Union Steward Elf and denied his breaks so perhaps a Union grievance requesting a new Steward is in order?  Does the Collective Bargaining Agreement specify breaks, and is Hermey being denied his rights under the CBA?  As a toy maker, is Hermey entitled to overtime pay due to having to work more than 40 hours in a workweek based upon his employer’s seasonal production demands?  Or does toy making qualify under the Artistic exemption to the FLSA?

Santa also appears to have some management style issues.  His employees gather to perform for him, as instructed by management and Santa, and Santa abruptly cuts them off.  The Union Steward  Elf may be filing a grievance against Santa for his refusal to engage in good faith bargaining about performances and toy production.  Santa needs to read “Good to Great” and “Blink” to have a better idea as to how to properly hire his management team, and manage and motivate his workforce.  Santa should consider signing up his leadership team for some team-building exercises.  Anti-harassment and anti-discrimination training – with Santa present – is warranted.

Gender discrimination is very obvious throughout the movie by the fact that Clarice and the other does are separated from the young bucks in the reindeer games – why can’t girl reindeer fly?  After all, Vixen is on Santa’s team.  Thank you Vixen for breaking that glass ceiling!  Direct evidence of gender discrimination is shown by the remark from Rudolph’s Father Donner that Clarice and Rudolph’s Mother cannot go looking for Rudolph in the snow storm because it’s much too dangerous “for girls”.

Need I discuss the Island of Misfit Toys?  Toys perceived as disabled are sent off to live far away from their able-bodied colleagues in a most discriminatory fashion.  Each toy sadly tells its tale of why the toy is different, and bemoans the fact that “no child wants to play with them” like they play with normal non-disabled toys.  I picture a seven-figure jury verdict here……

The Abominable Snow Monster, affectionately called “The Bumble” is either the poster-child for successful anger management or rehabilitation programs, or is the victim of national origin and religious discrimination due to his following the rituals of his ancestors and eating deer meat.  As a result of his religious practices, The Bumble is then subjected to harassment and even maiming due to discrimination.  His conforming to the standards of others is presented in a positive manner due to his participation in the tree lighting ceremony, but is he participating out of fear of further retaliation?  All of his teeth were pulled, what physical torture could result out of further practicing his sacred rites?

Donner suffered injuries while in the cave of The Bumble.  Was Donner’s search for Rudolph – conducted with the consent and approval of Santa – within the course and scope of employment such that a workers’ compensation claim could be filed against Santa’s Workshop?  Or was the trip to the known hazardous area surrounding The Bumble’s cave outside of Santa’s instructions such that a frolic and detour could be alleged?

While Santa comes around to recognizing the hard work of his employees at the end of the movie, you have to wonder if his change of heart is due only to the fact that the Christmas Eve Special Project assignment was successfully completed.  Santa needs to recommit to ensuring a discrimination and harassment free environment to comply with his Workshop’s mission statement of bringing joy and happiness to all.

I plan to sing along with Sam the Snowman, a.k.a. Burl Ives, clutching my cup of hot cocoa – and cup of cheer – as I watch Rudolph again this year.  I assure you I will enjoy every single politically incorrect moment.

Happy Holidays!

Chris Sensenig

• Name/SSN no-matches can result because of simple administrative errors.
• Employers should check the reported no-match information against the employer’s personnel records.
• The employer must inform the employee of the no-match notice.
• The employer should ask the employee to confirm the name and social security number reflected in the employer’s personnel records.
• The employer should advise the employee to contact the Social Security Administration (SSA) to correct and/or update his or her SSA records.
• The employer should give the employee a reasonable period of time to address a reported no-match with the local SSA office.  It appears that the DOJ is borrowing the 120 day period from the E-Verify program as a “reasonable” period of time in which to allow for the mystery to be solved.

Employers need to have a policy in place regarding how mismatches are addressed as failure to apply the same procedures for all employees regardless of citizenship status or national origin could result in discrimination claims under both Title VII, state anti-discrimination laws, local ordinances, and the Immigration Nationality Act.

Once the employee has been advised as to the mismatch, the employer should periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.  If there are any corrections, the employer or employee should submit corrections to the Social Security Administration.

The DOJ states in its Guidance that employers should NOT:

• Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.
• Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
• Attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.  Engage in this reverification at your peril.
• Follow different procedures for different classes of employees based on national origin or citizenship status.
• Require the employee to produce specific documents to address the no-match.
• Ask the employee to provide a written report of Social Security Administration verification – or written proof of having visited any governmental agency.

The Office of Special Counsel is available to provide employers and employees with more information on the social security mismatch issue, and on anti-discrimination provisions of the Immigration and Nationality Act.  The Office of Special Counsel can be reached at 1-800-255-7688/1-800-237-2525 (Hearing Impaired/TDD) or visit the website: http://www.justice.gov/crt/osc.  It is always a good idea to review the information provided by the various government agencies to learn how it is the agencies will interpret certain acts.  Having standard policies in place prior to receiving the next round of mismatch letters to be issued is a good proactive plan.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.

The company at issue, American Medical Response, took the proactive step of having a policy in place governing conduct Facebook and other social media/social networking sites.  I regularly advise my clients to have such policies in place as having rules in place reduces confusion later – and protects one’s brand and reputation in the cyberspace community.

The NLRB argues that the Company’s policy is overly broad.  Even more interesting is the NLRB’s theory that the Company’s policy violates the National Labor Relations Act’s prohibition against punishing employees for engaging in or soliciting discussions about working conditions or unionization.  A lawyer for the NLRB likened the Facebook posting to a “water cooler discussion among co-workers.”  Is Facebook analogous to the public square such that the protections of the NLRA apply?  Is it ever acceptable to hurl insults at one’s supervisor and expect no repercussions?  Does the inquiry change if the employee in question had her privacy settings set so that the general public could not see her posts?  Does commenting on a supervisor’s mental health status implicate the employer’s anti-harassment/anti-discrimination policies or perhaps the ADA?  Would the decision be different in a state such as Florida where we have a constitutional right to privacy guaranteed by Florida’s State Constitution?  Does the First Amendment come into play considering the comment was likely made on the employee’s own time?

To aid in framing the discussion, the NLRB provides guidance as to when Facebook comments lose protected concerted activity status under the NLRA.  Where is this guidance found?  On the NLRB’s Facebook page!  The NLRB states that a four point test applies: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.

Employers would be wise to review their social media and social networking policies for overreaching in light of the NLRB’s stance. The bigger picture question is whether a successful action by the NLRB results in employee rants, however vulgar,  being deemed protected activity under the NLRA?  While it is unlikely that protection will be found for an employee’s publicly ridiculing of a supervisor and suggesting that the supervisor was mentally unstable, stranger things have happened when dealing with the NLRB.

A hearing on the NLRB complaint is currently scheduled for January 25, 2011.  Updates will be provided on this blog.  You can also check out the NLRB’s Facebook page for updates on the issue as well:  http://www.facebook.com/NLRBpage.

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.