Employers, your mail this holiday season may include more than holiday greeting cards – DOJ just issued Social Security Mismatch Number FAQ’s and Guidance

November 30, 2010 at 2:34 pm | Posted in Employee, Employer, Employment Law, I9, Immigration, Social Media/Social Networking | 1 Comment
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The Department of Justice decided that the holiday season, a time of hiring seasonal help, was just the right time to issue new Frequently Asked Questions and Guidance regarding an issue that’s been dormant for some time – the issue of what to do when an employer is notified that there appears to be a mismatch for a reported social security number of an employee.  The DOJ asks employers to recognize that:

  • 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.

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The National Labor Relations Board files a complaint based on Facebook comments – with the NLRB entering the mix, will a ruling alter social media/social networking policies in the private or public sector?

November 10, 2010 at 8:23 pm | Posted in ADA, discrimination, Employee, Employer, harassment, Legal, New employment laws/amendments, Social Media/Social Networking, union | Leave a comment
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The National Labor Relations Board – “NLRB” – has taken up the cause of a Connecticut employee who was fired after making a post on her Facebook page.  The employee in question used some vulgar language when making comments about her supervisor, and then maligned the supervisor’s psychiatric state by using one of her Company’s codes for a psychiatric patient in her post: “Love how the company allows a 17 to become a supervisor.”  The termination caught the NLRB’s attention as the employee suggested she posted the criticism because the supervisor in question would not let a union representative prepare a response to a customer’s complaint regarding work she had done for the customer.

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.

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