WORKPLACE ISSUES
Zinn's sins to avoid
Following on the heels of my article "Confessions of an HR professional" (February 2008, p. 1), I believe it's paramount that today's savvy HR professionals stay up to date on employment law's hot topics. To that end, I present to you some "sins to
avoid."
Thou shalt not hire illegal aliens
After nearly two years of intense debate (and some would say more), employment- related immigration remains a hot topic. Adding another log to the fire, Secretary of Homeland Security Michael Chertoff and Attorney General Michael B. Mukasey announced
in a joint briefing the government's plan to increase civil fines against employers caught violating federal immigration laws. In a February 22, 2008, press release from the U.S. Department of Justice, Mukasey stated that the penalty rates were being
"adjusted for inflation." He also noted that the average adjustment amounted to about 25 percent. The increased fines were published in the Federal Register on February 26.
As most HR professionals are aware, having improperly completed I-9s, not having I-9s at all, and other issues revolving around I-9s could result in monetary fines. These fines usually follow an audit by the appropriate governmental agency and can
result from defects in the I-9 itself, such as failing to fill in the employer certification in Section 2 in addition to knowingly employing an unauthorized alien. The "knowingly employing" standard can be actual or constructive and can be derived
from situations such as when an employer has an obligation to reverify an individual's employment authorization and fails to do so. The increased fines apply when the employer knowingly employs individuals without proper work authorization
documentation.
Under the new regulations, the minimum penalty for knowingly employing an unauthorized alien has increased by $100 to $375. The maximum civil penalty has increased $1,000 to $3,200. The biggest increase comes for employers with multiple violations,
with maximum fines boosted from $11,000 to $16,000. These higher rates took effect March 27.
U.S. Immigration and Customs Enforcement (ICE) has announced a planned increase in enforcing immigration laws, including employer compliance by having properly completed I-9 forms. The increased fines could mean considerable costs for U.S. employers
dealing with government-conducted I-9 audits. To avoid the increased fines, you should ensure proper compliance with I-9 procedures and consider I-9 self-audits. As always, and as I've learned from experience, savvy HR professionals should look to
their labor and employment counsel for guidance.
Thou shalt not discriminate or harass
The laws governing employee remedies for discrimination and harassment are nothing new. In fact, smart HR professionals have been preaching and practicing antiharassment and antidiscrimination training for years. Based on last year's numbers,
however, it looks like efforts need to be doubled. Last year, the Equal Employment Opportunity Commission (EEOC) received the highest complaint level since 2002 and experienced the biggest percentage increase (nine percent) since 1993. EEOC
Chairwoman Naomi Earp stated, "Corporate America needs to do a better job of proactively preventing discrimination and addressing complaints promptly and effectively."
Complaints to the EEOC had been on a downward trend until 2006. That year, there was a slight increase. Unfortunately, that slight increase was merely a prelude to the huge jump experienced last year. The EEOC is afraid that the increase isn't an
aberration and that a trend could be developing. Allegations of race discrimination led the way in 2007, with retaliation taking second place. This was the first time in history that retaliation-based complaints took the number two spot. They
surpassed sex-based discrimination charges, which also increased. Other categories of discrimination also received increased complaints.
The EEOC hit another record last year when pregnancy discrimination complaints increased 14 percent. The only major discrimination category to decrease last year was violations of equal pay laws. However, that decrease accounted for only one percent
of all cases filed with the EEOC.
You should take these numbers to heart and continue your proactive efforts to battle workplace discrimination and harassment. A good start for savvy HR professionals is revising the company's discrimination and harassment policies and conducting
antidiscrimination and antiharassment training. Again, look to your labor and employment counsel for guidance.
Copyright 2008 M. Lee Smith Publishers LLC
The contents of NEVADA EMPLOYMENT LAW LETTER are intended for general information and should not be construed as legal advice or opinion. To request further information or to comment on an article, please contact Suzanne L. Martin at 702-949-8291,
Howard E. Cole at 702-949-8315, or Anthony (Tony) L. Martin at 702-949-8282.
