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SHRM Newsletter- How to Handle I-9 Mistakes
Posted on Oct. 26, 2012

This is Utah SHRM Legal-mail no. 2012-20 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:

-  HOW TO HANDLE I-9 MISTAKES

-  NEW FCRA FORMS ISSUED

-  MORE NEWS ON PROBLEMS DEALING WITH CRIMINAL CONVICTIONS

-  RARE SUMMARY JUDGMENT FOR EMPLOYEE IN HARASSMENT CASE

-  THE TEN COMMANDMENTS OF HIRING

-  THE TEN COMMANDMENTS OF FIRING

HOW TO HANDLE I-9 MISTAKES: With more employers subject to I-9 audits than ever before, more employers are asking how to fix mistakes they find when they do a self-audit of their I-9 forms. The answer to how, of course, is...very carefully!  Mistakes should be fixed in a manner where it is clear as to how and when they are fixed. In other words, don’t try to make it look like no mistake occurred. Instead, acknowledge it, fix it, date it and maybe even put a note on it explaining what happened and how you fixed it. Here are a couple of links to good government websites giving tips on how to fill out an I-9 and fix mistakes that may occur: (USCIS webpage on avoiding common errors) http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=ad8e1a48b9a2e210VgnVCM100000082ca60aRCRD&vgnextchannel=ad8e1a48b9a2e210VgnVCM100000082ca60aRCRD and (USCIS employer handbook)  http://www.uscis.gov/files/form/m-274.pdf . By the way, the speculation by those in the know is that the new I-9 form likely will be ready for employer use by January of 2013.

NEW FCRA FORMS ISSUED: A few updates ago, I mentioned that the federal government will be issuing new forms for use in background checks by January 1, 2013. The forms are required for compliance with the Fair Credit Reporting Act (FCRA), which was discussed in detail in my last email update. The forms to be modified include the statement of rights employers give to employees (notably when taking adverse action based on a consumer report), the notice to users of consumer reports of their obligations and the notices given to furnishers of information. Well, they’re here! Here is a link where you can find the new model forms: http://www.jacksonlewis.com/media/pnc/2/media.2102.pdf

MORE NEWS ON PROBLEMS DEALING WITH CRIMINAL CONVICTIONS: Over the past few years, it has become an increasingly-complex process for employers to obtain, consider and use information about an applicant’s criminal conviction history in employment decisions. Federal and state laws have imposed new procedural obligations on the process (think of the Fair Credit reporting Act) and agencies like the Equal Employment Opportunity Commission (EEOC) have threatened to investigate if an employer does not have a sufficient explanation on why a criminal conviction relates to and disqualifies someone for a job. A new twist on the issue comes from the Vermont State Supreme Court. In a recent decision, that court held that an employee’s criminal conviction while off-duty and off-site did not make him ineligible for unemployment compensation. The employee had been convicted of lewdness for groping various private parts of a woman’s body without her consent. When the employer learned of the criminal conviction, it fired him from his janitor’s job. After a series of appeals, the court ultimately concluded the former employee’s off-duty and off-site behavior in no way related to his job performance and thus he was eligible for and should receive benefits.

RARE SUMMARY JUDGMENT FOR EMPLOYEE IN HARASSMENT CASE: A Utah federal court judge has granted a rare summary judgment ruling to plaintiffs in a particularly-egregious racial harassment and retaliation case. Summary judgment is essentially a verdict without a trial, and while it is commonly used to dismiss plaintiff’s cases lacking in merit, it is rarely used to rule in favor of a plaintiff. However, Utah federal court Judge Dale Kimball recently ruled in favor of employees in a case brought against a construction company.  The court based its ruling on uncontroverted evidence that a supervisor used racial slurs almost every time he referred to certain African-American employees and that he also frequently told racial jokes. There also was evidence in the case that the supervisor’s supervisor participated in the inappropriate and harassing behavior. The employer also tolerated racist graffiti present on portable toilets used at work sites. The court also criticized the employer’s anti-harassment policy because it directed employees to report misconduct to the harassing supervisors themselves and did not provide alternative means of reporting. This case is a useful reminder to other employers to proactively deal with such problems and create many avenues by which employees can identify problems within the workplace.

THE TEN COMMANDMENTS OF HIRING: I recently gave a webinar on a set of employment law tips I call the Ten Commandments of Hiring and Firing. I republish them from time-to-time and have received some requests to do so again, so here they are.  I hope they are helpful. Here are the Ten Commandment of Hiring-

  1. Follow closely all relevant company policies related to hiring, e.g. re:  application and offer process, interviews, and EEO. If you do not have any such policies, get some and train all persons who are to use them.
  2. Be aware of relevant state and local laws, as well as national ones (e.g. – Salt Lake City ordinance precludes discrimination based on sexual orientation and gender identity, Florida based on marital status and Wyoming based on tobacco use).
  3. Learn about and train all employees to avoid inappropriate inquiries.
  4. Be consistent in your decisions to avoid allegations of disparate treatment.
  5. Act on the basis of job-related factors.
  6. Document such things as eligibility to work in the United States after job offers.
  7. Carefully verify the legality of and business justification for any pre-employment testing (drugs, psychology, etc.).
  8. Use at-will statements and contract disclaimers on application forms and offer letters and avoid statements re: job security, probationary periods, tenure and reasons for discharge, unless you intend to create a contract, which should be done in writing.
  9. Do not make promises you may not be able to keep – (e.g. “We will review your application against future openings”).
  10. Be humane and professional. Revenge is the motive for many employment lawsuits.

THE TEN COMMANDMENTS OF FIRING: And here are the Ten Commandments of Firing-

  1. Follow closely all relevant company policies related to discharge, e.g. re: termination, progressive discipline and EEO. If you do not have any such policies, get some and train all persons who are to use them.
  2. Do not act alone. Two heads are better than one.  Two witnesses are better than one. Avoid the “he said/she said scenario” played out in so many cases (remember Anita Hill and Clarence Thomas?).
  3. Never act out of anger. Wait until you are no longer angry and investigate thoroughly before deciding what to do. In an emergency, suspend (with pay for exempt employees).
  4. Do not give assurances of job security, long-term employment. Otherwise you may be creating contracts. If you have a contract, follow it.
  5. Clearly tell people what they need to do (a good job description helps). Honestly and fairly evaluate employees and performance reviews during performance reviews and document the same. In other words, be proactive in trying to avoid problems before it is necessary to terminate.
  6. Act based on job-related factors, not on personality or other factors not related to the job.
  7. Be consistent. Discrimination claims thrive where similar circumstances are not treated similarly.
  8. Be reasonable in establishing expectations of your employees and give clear notice of the same.
  9. Document your decision in writing. Remember that whatever you write will be “Exhibit A” in any lawsuit.
  10. Be humane and professional. Many lawsuits are filed for reasons of revenge.
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Author

mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition

OBrienAV

OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien
 

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012