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RECENT DEVELOPMENTS IN
LABOR AND EMPLOYMENT
James E. Fagan, III
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“Hot topics” in labor and employment
Wage & Hour enforcement issues
Occupational Safety and Health Act (OSHA)
enforcement issues
Workers’ Compensation and the undocumented
worker
E-Verify and I-9 Compliance
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Wage and Hour: Worker Classification
Federal and state governments are collecting
their lost tax revenue
Misclassified workers are going after their lost
fringe benefits
Increased government enforcement!
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Wage and Hour: Worker Classification
DOL’s “Plan/Prevent/Protect Strategy” – extends to
wage and hour classification Employers will be required to provide workers
with basic information about their employment, including how their pay is calculated.
Employers that seek to exclude workers from FLSA coverage will be required to perform a classification analysis and disclose analysis to that worker, and retain analysis to give to WHD enforcement personnel who might request it.
Addresses burdens of proof when employers fail to comply with records and notice requirements
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Practical Impact of Employee Classification Laws on Employers
The status of a particular worker is a product of
the facts and circumstances surrounding that
worker
– IRS has replaced its 20-factor test and is now looking at the facts as a whole regarding degree of control/independence:
• Behavioral
• Financial
• Type of relationship
– Test changes depending on issue
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Workers’ Compensation Developments – undocumented workers still present issues
Are undocumented workers covered?
– The Supreme court seemed to hint no in Hoffman Plastic v. NLRB, 535 U.S. 137 (2002) – violation of Immigration Reform and Control Act (IRCA) re: NLRA back-pay
– But many subsequent appellate courts have not read Hoffman Plastic to deny benefits, ruling that the IRCA does not preempt state or federal workers’ compensation laws and/or that the definition of employee includes undocumented workers
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Workers’ Compensation Developments – undocumented workers still present issues
Economy Packing Co. v. Illinois WCC, 901
N.E.2d 915 (Ill. Ct. App. 2008)(IRCA preemption)
Curiel v. Environmental Management Services,
655 S.E.2d 482 (S.C. 2007)(IRCA preemption)
Design Kitchen and Baths v. Lagos, 882 A.2d 817
(Md. 2005) (definition of employee)
The Virginia Supreme Court ruled the other way
in 1999, but the legislature corrected this quickly
Arizona appears to be the lone holdout
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Workers’ Compensation Developments – undocumented workers still present issues
Despite a consensus on coverage, issues remain:
– Eligibility for disability payments (must prove not able to work – undocumented workers cannot prove any eligibility) – cases holding that ability is without regard to status
– Disclosure of disability status in discovery – may lead to deportation – cases hold that questions on status not relevant
– Ethical questions for lawyers – can one “ignore” illegal status?
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New OSHA Standards
Employers will be required to implement an Injury
and Illness Prevention Program.
Employers are required to train employees in a
language employees can understand.
Severe Violator Enforcement Program and
Increased Penalties
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I-9s and E-Verify
Completing the Form I-9
As the employer, you must ensure that each
employee completes Section 1 of the Form I-9
before his/her work begins. You must complete
Section 2 within 72 hours after the employee
begins work (unless he/she is hired for a total
period of less than three days). If possible,
complete the entire form before the employee
starts working.
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I-9s and E-Verify
For Section 2, let the employee choose the
approved document(s) from the “Lists of
Acceptable Documents” (Lists A, B, and C) on the
Form I-9 to establish his/her identity and
employment eligibility. An employee must
produce one valid document from List A or one
valid document from List B and one from List C.
Do not ask an employee to produce any particular
document, and do not require any employee to
produce more or different documentation than is
required by law.
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I-9s and E-Verify
If an employee indicates at Section 1 that he/she is only authorized to work in the U.S. for a specified period of time, record the date on which work authorization will end. At least 90 days before that expiration date, remind the employee that his/her work authorization will soon expire and ask the employee to provide, on or before the expiration date, new documentation showing continued eligibility to work in the U.S. Complete Section 3 of the Form I-9, using the new documentation, on or before the expiration of the employee’s original work authorization.
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I-9s and E-Verify
Accept any documents that an employee
offers from the Form I-9’s Lists of Acceptable
Documents if they reasonably appear: (a) to
be genuine and (b) to relate to the employee.
You must review original document(s) and
may not accept photocopies for this purpose.
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I-9s and E-Verify
Maintaining Your Employees’ I-9 Forms You must have a Form I-9 on file for every current employee. You must keep a Form I-9 on file for every former employee
for three years after the employee’s date of hire or one year after his/her employment ends, whichever is later.
If you choose to make copies of the Section 2 documents provided by an employee, you must do so for all employees and you must keep the copies with the I-9 forms.
Maintain I-9 forms separately from other personnel files.
You may keep I-9 forms in paper, microfiche, microfilm or electronic form.
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I-9s and E-Verify
E-Verify is a free government “check” on
immigration status. It does not replace I-9
requirements, but rather it is a way to check the
credentials provided.
It is voluntary, except for most federal contractors
and subcontractors and pursuant to certain state
laws.
Virginia requires state agency participation.
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QUESTIONS?