Osc: U.S. DEPARTMENT OF JUSTICE OFFICE OF SPECIAL COUNSEL FOR IMMIGRATION-RELATED UNFAIR EMPLOYMENT...

osc:U.S. DEPARTMENT OF JUSTICE

OFFICE OF SPECIAL COUNSEL FOR IMMIGRATION-RELATED

UNFAIR EMPLOYMENT PRACTICES

EEOC:

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

JOINT WEBINAR FOR THE CHICKEN COUNCIL

AUGUST 14, 2012

U.S. Department of JusticeCivil Rights Division

Office of Special CounselFor Immigration-Related

Unfair Employment Practices

Prohibited Conduct Under the INA’s Anti-Discrimination Provision

(8 U.S.C. 1324b)

Citizenship/Immigration status discrimination

National origin discrimination Document abuse Retaliation or Intimidation

Employer Hotline: 1-800-255-8155 Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

Document Abuse ExamplesWhen completing the Form I-9: Requiring non-U.S. citizens to produce a List A document but

allowing U.S. citizens to produce any document(s) they choose

Requiring non-U.S. citizens to produce documents from Lists A, B, and C

Requiring certain U.S. citizens to produce a certificate of naturalization

Rejecting documents that are valid based on citizenship status or national origin

Employer Hotline: 1-800-255-8155 Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

Document Abuse & Form I-9 The Form I-9’s purpose is

to establish a worker’s identity and work authorization

All employees hired after November 6, 1986, and working in the United States must complete an I-9 Form

The form has 3 sections

Employer Hotline: 1-800-255-8155 Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

Form I-9: Section 1Employee completes Section 1 after accepting a job offer and by the first day of work

Employer Hotline: 1-800-255-8155 Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

• Some “aliens authorized to work,” such as refugees and asylees, are authorized to work indefinitely

• If no expiration date, the employee may write: “N/A”• An employee is not required to show documents proving

the selected status

Employer Hotline: 1-800-255-8155

Form I-9: Section 1 (cont.)

Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

Form I-9: Section 2

• List A (Both Identity & Employment Eligibility) OR

• List B (Identity) + List C (Employment Eligibility)

Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

Employer Hotline: 1-800-255-8155Worker Hotline: 1-800-255-7688

Worker Hotline: 1-800-255-7688Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc Worker Hotline: 1-800-255-7688 Office of Special Counsel for Immigration-Related Unfair

Employment Practices: www.justice.gov/crt/about/osc

Employer completes Section 2 within 3 business days of the first day of work. (If job begins Monday, Section 2 must be completed by Thursday)

Employer Hotline: 1-800-255-8155

Form I-9: Section 2 (cont.) Preventing Discrimination

An employer must allow the employee to present his or her choice of documentation to complete the I-9 Form

An employer may not ask for specific or more documents, or reject a valid document

Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

There are exceptions to the general rule that documents must be unexpired:

Example - “Temporary Protected Status” or “TPS”: EAD with A-12 or C-19 category may be subject to an “automatic extension”

Generally, documents without an expiration date are unexpired:

INS-issued Resident Alien card with no expiration date

Employer Hotline: 1-800-255-8155

Form I-9: Section 2 (cont.) Documents with Expiration Dates

Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

Form I-9: Section 2 (cont.) Acceptable Receipts

Receipt for the replacement of a document that was lost, stolen or damaged (valid 90 days)

Arrival portion of Form I-94/I-94A with a temporary I-551 stamp and the individual’s photograph (valid for 1 year from issuance if no expiration date)

Departure portion of Form I-94/I-94A with a refugee admission stamp (valid for 90 days)

Employer Hotline: 1-800-255-8155 Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

Form I-9: Section 2 Common Problems

Requiring non-U.S. citizens to produce a List A document but allowing U.S. citizens to produce any document they choose

Requiring non-U.S. citizens to produce documents from Lists A, B, and C

Failing to consult the current version of the Handbook for Employers or USCIS’s I-9 Central website, and rejecting less common I-9 documents, such as receipts

Employer Hotline: 1-800-255-8155 Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

Form I-9: Section 3 (Updating and Reverification)

U.S citizens, Permanent Resident Cards (green cards), and List B documents should not be reverified!

Employer must accept a List A or List C document (e.g. unrestricted social security card)

Employer Hotline: 1-800-255-8155 Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

A notice that the employee name and Social Security Number (SSN) submitted by employer do not match agency records

No-Match notices alone say nothing about immigration status or work authorization

Employer Hotline: 1-800-255-8155

Social Security Number No-Match

Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

Responding to SSN No-Matches

Do NOT assume no-match notice is evidence of undocumented status or lack of work authorization

Follow same procedures for all employees, regardless of citizenship status or national origin

Give the employees a reasonable period of time to resolve any discrepancy in the employee’s records

No-match guidance is available on OSC’s website

Employer Hotline: 1-800-255-8155 Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

Social Security Number Verification Service: SSNVS

SSNVS is not a substitute for E-Verify May be used only for wage reporting (W-2)

purposes Illegal to use before hiring a worker Must apply consistently to all workers

Employer Hotline: 1-800-255-8155 Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

OSC Resources Call OSC’s Employer Hotline 1-800-255-8155 to speak

with an OSC representative (calls can be anonymous) Sign up for a free webinar Educational materials are available on OSC’s website:

www.justice.gov/crt/about/osc Contact OSC for printed materials Employers can email us for technical assistance at

osccrt@usdoj.gov

Employer Hotline: 1-800-255-8155 Office of Special Counsel for Immigration-Related Unfair Employment Practices: www.justice.gov/crt/about/osc

OVERVIEW OF EEOC LAWS:AGE, PREGNANCY AND

DISABILITY DISCRIMINATION

Lucila G. Rosas, Administrative Judge

lucila.rosas@eeoc.gov

www.eeoc.gov

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Applicable Laws Enforced by EEOC Age Discrimination in Employment Act (ADEA) – prohibits discrimination

of employees 40+

Americans with Disabilities Act and Amendments (ADA & ADAAA) – prohibits discrimination of employees with disabilities

Title VII – Civil Rights Act of 1964 – prohibits discrimination in employment on basis of : Race/ Color, National Origin, Religion and Sex – includes PREGNANCY DISCRIMINATION

ALL PROHIBIT RETALIATION

Coverage: Title VII & ADAAA– 15 or more employees, ADEA = 20+ employees

Time Period: 180 days from incident, except where State agency, then 300 days.

ADA Amendments Act of 2008(ADAAA)

ADAAA – modifies ADA; applies to incidents after Jan. 1, 2009.

ADAAA - prohibits discrimination on the basis of disability.

Modifies definition of individual with a disability:1. has a physical or mental impairment that substantially limits one or

more major life activities (“actual disability”) - such as walking, talking, seeing, learning, or

2. record of a physical or mental impairment that substantially limited a major life activity (“record of”), or

3. when an employer takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”)

See EEOC’s website for info re: ADAAA http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm

ADA Amendments Act of 2008 (ADAAA)

Impact of the ADAAA on coverage: Easier to establish coverage as a person with a disability Focus is on questions re: reasonable accommodation

Coverage easier because: Major life activities include major bodily functions: Broad construction of “substantially limits” Ameliorative effects of mitigating measures NOT considered Impairments that are “episodic” or “in remission” are substantially

limiting if they would be when ACTIVE. Impairment that is temporary – one that will last fewer than six

months – can be substantially limiting

See 29 C.F.R. §1630.2(j)(3)(iii) for a list of impairments that will generally be covered under the new definitions and rules of construction.

Reasonable Accommodation & Interactive Process

A request for reasonable accommodation is the first step in an informal, interactive process between individual & employer.

Ultimate goal of interactive process = find an accommodation that will allow the individual w/ disability to perform essential functions of job w/o imposing undue hardship on employer.

“Plain English” language ok. Don’t have to use words “reasonable accommodation” or “ADA”.

Interactive process should be informal – not legalistic.

Employee’s best interest to come forward & notify employer. Employer’s best interest to notify employees that it’s ok to come forward

about their need for accommodations.

Undue Hardship – Definition and Considerations:

An employer is not required to provide a reasonable accommodation if doing so would impose an undue hardship on the employer.

The definition of undue hardship is “significant difficulty or expense.”

An employer can show that an accommodation imposes either significant financial difficulty or significant operational difficulty.

The undue hardship analysis is completely case specific.

Examples of Reasonable Accommodations

Restructuring job, i.e. shifting minor tasks to others or changing how job is done, etc.

Flexible work schedule (modified or part-time work schedule)

Telecommuting

Computer assistive programs

Leaves of absence (different from leave under Family Medical Leave Act)

No-Fault Attendance and Maximum Leave Policies

Under No-Fault Attendance policies, employee is automatically terminated after having been on leave for a certain period of time.

The ADA does not prevent an employer from having a no-fault attendance policy or a maximum leave policy.

BUT – the ADA requires an employer to modify the no-fault aspect of its attendance policy or extend the maximum amount of leave -- if providing such modifications as a reasonable accommodation would not impose an undue hardship on the employer.

Pregnancy Discrimination Act

In 1978, Congress amended Title VII to prohibit discrimination on the basis of pregnancy.

Act makes it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

Prohibits Retaliation.

Pregnancy Discrimination = Sex Discrimination

An employer cannot ... refuse to hire a woman because of pregnancy, as

long as she is able to perform the major functions of her job.

fire an employee because of pregnancy or the prejudices of co-workers, clients or customers.

force an employee to stop working due to pregnancy.

harass a pregnant employee.

Pregnancy Discrimination Act and Maternity leave

Employers must:Give leave for pregnancy-related disabilities under

same terms or conditions as for other temporary disabilities.

Let employee specify when leave begins or endsHold job open in the same manner as other

temporary disability conditionsContinue medical coverage for pregnant employee as

with employees with other medical conditions.

TRENDS IN AGE DISCRIMINATION CASES

EEOC charges account for over 20% of total charges received.

Ageist Stereotypes deeply entrenched“less adaptable, harder to train, less flexible, more

resistant to change” If laid off, less likely to find new jobs, takes longer to

find job and if hired, generally earn less. Defendant would not have made same decision anyway.

More difficult for employee to prove age discrimination given Supreme Court decisions.

AGE DISCRIMINATION

Employee must show:He/she is 40 years of age or older and

Treated less favorably than other similarly situated employees outside of this protected class (under the age of 40 years old and/or substantially younger than complainant).

ADEA applies to all forms of employment actions, including hiring, firing, promotion, and terms and conditions of employment.

Gross Decision and It’s Impact on ADEA litigation

Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (2009) – Supreme Court held:

1) mixed-motives jury instruction is never proper under the ADEA;2) Plaintiff must show that age was the “BUT FOR” cause of discrimination in all circumstances.

In practice, plaintiff must show that Def. would not have made same decision - even if Def. admits that it took an adverse employment action in part because of age.

EEOC Guidance on ADEA and Disparate Impact

EEOC final rule on Reasonable Factors Other than Age (RFOA) makes EEOC’s existing regulation consistent w/ Supreme Court’s holding in Smith and Meachem & explains meaning of RFOA defense. (See 29 CFR § 1625.7(e))

Cases held that employer bears the burden of proving the RFOA defense.

Provides non-exhaustive list of considerations to determine if practice by employers is RFOA (29 CFR § 1625.7(e)(1) – (5)).

See www.eeoc.gov for additional information.

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