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SHRM Newsletter: Return of No Match

05/03/2011

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May 3, 2011

This is Utah SHRM Legal-mail no. 2011-8 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-  RETURN OF NO MATCH

-  NEW I-9 RULES

-  CLASS ACTION WAIVERS OK IN CALIFORNIA

-  ANNUAL SUMMER INTERN REMINDER

-  ROCKY MOUNTAIN HIGH?

RETURN OF NO MATCH:  There are a couple of new developments of note in the field of immigration law.  The Social Security Administration (SSA) has announced that it will resume the practice of sending “no match” letters to employers.  “No match” letters advise employers that the information on an employee’s W-2 or W-2c form does not match the records of the SSA.  You cannot assume this means you have hired an undocumented worker because often such letters result from typos or incomplete reports of names.  However, you cannot assume there is no problem either because sometimes these letters can indicate that the person involved is misusing someone else’s identifying information.  Employers should allow employees time to resolve any problems with the SSA but if they cannot be resolved, termination may be appropriate.  Consult legal counsel in try to minimize and manage legal risk in such situations. 

NEW I-9 RULES:  In another immigration law development, the US Citizenship and Immigration Services office (USCIS) has published its final rules attempting to improve the I-9 process.  The new regulations take effect on May 16, 2011.  The new rules require that employers accept only unexpired documents and otherwise revise the list of acceptable documents.  You can read the new rules at http://edocket.access.gpo.gov/2011/2011-9152.htm.  Note also that although I-9 rules do not require that you keep copies of employee documents presented during the I-9 process (even though this is a good idea), USCIS requires that you keep copies of a permanent resident card, employment authorization document or passport used as part of the photo matching E-Verify process.  For more details, please see: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=bbcbfb41c8596210VgnVCM100000b92ca60aRCRD&vgnextchannel=bbcbfb41c8596210VgnVCM100000b92ca60aRCRD

CLASS ACTION WAIVERS OK IN CALIFORNIA: The United States Supreme Court recently ruled that class action waivers are valid in California.  The California courts had declined to enforce such waivers, in which consumers or employers agree to arbitrate their disputes and waive their right to participate in a class action lawsuit.  The Supreme Court held that California state law did not govern the issue in that case, but rather the question of enforceability must be decided under the Federal Arbitration Act which preempts state laws.

ANNUAL SUMMER INTERN REMINDER:  As the temperatures climb, it is time once again to think of such things as warm weather vacations, baseball and the risk of employing unpaid summer interns.  Here is a link to the fact sheet from the United States Department of Labor (DOL) on how to manage this issue: http://www.dol.gov/whd/regs/compliance/whdfs71.pdf In a nutshell, interns will be considered employees who must be paid unless: (1) The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; (2) The internship experience is for the benefit of the intern; (3) The intern does not displace regular employees, but works under close supervision of existing staff; (4) The employer that provides the training derives no immediate advantage from the activities of the intern and on occasion its operations may actually be impeded; (5) The intern is not necessarily entitled to a job at the conclusion of the internship; and  (6) The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

ROCKY MOUNTAIN HIGH?  The Montana Supreme Court has enforced a workers’ compensation award for an injured employee despite evidence of his use of marijuana.  The employee worked for a bear park and was injured while feeding the bears.  There was evidence that he was a regular user of marijuana and had smoked it on his way to work the day of his injury.  However, there also was evidence that he had smoked with the owner of the park.  So before you start to growl about what sounds like an unbearable ruling, read the court’s logical explanation for its ruling.  The court noted that “use of marijuana to kick off a day of working around grizzly bears was ill-advised to say the least and mind-bogglingly stupid to say the most.”  However, the court also explained that grizzlies are “equal opportunity maulers” without regarding to use of marijuana and thus the drug use was not a major contributing cause to the injury.  Wow…now that’s a ruling with some teeth in it!

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.