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Utah SHRM Newsletter: EEOC Update, New I-9 Forms and Fair Labor Standards Act
Posted on Apr. 23, 2013

This is Utah SHRM Legal-mail no. 2013-6 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).



PARTIAL DEAFNESS RULED NOT TO BE ADA DISABILITY: Since Congress amended the Americans With Disabilities Act (ADA) a few years ago, the conventional wisdom has been that many more physical and mental impairments would be covered by the law. This has been true in many cases (leading many employers to focus on the issue of accommodation rather than whether a disability exists). A recent Pennsylvania federal court ruling, however, is a reminder that not every condition will be disability. The court ruled that partial deafness was not an ADA disability based on the facts before it. The plaintiff was totally deaf in one ear and experienced problems in balance. The court ruled she was not disabled because she was not able to cite any instances when her hearing loss had caused her a problem. Had she done so, the court may have reached a different result. This case is a reminder that an ADA disability requires a showing of both an impairment and substantial limitation. However, my experience is that most plaintiffs (and their lawyers) are able to do a better job of showing problems related to the impairment than was the case here. Remember, when it comes to the ADA, each individual situation must be analyzed on its own facts.

EEOC HOLDS HEARINGS ON QUALITY OF INVESTIGATIONS: The Equal Employment Opportunity Commission (EEOC) recently held hearings on the quality of its investigations. Issues discussed included better ways for investigators to communicate to the charging parties, whether the EEOC should reveal its initial case classification to an employer (A= likely finding for employee; B= uncertain; C= likely finding for employer), ways to move cases along more quickly (investigators carry a caseload of over 100 open cases each), how the EEOC conciliation process is hampered by the agency’s unwillingness to explain the basis for its cause findings. The EEOC hopes to implement a new quality control plan for investigations during the year 2014.

EEOC LAWYER WARNS OF MORE PREGNANCY DISCRIMINATION CASES: Speaking at a recent webinar, an EEOC regional lawyer recently warned employers that they likely will face more claims of pregnancy discrimination. She indicated that such claims often include direct and overt evidence, such as an employer expressly telling an applicant she was not hired because she will be unavailable (i.e. giving birth) soon. The conference also discussed a rise in claims under the ADA from persons having to care for disabled family members and new legal theories being used to assert “caregiver” discrimination claims by employees caring for young children or elderly parents.

TIPS FOR USING NEW I-9 FORMS: Employers should be using the new I-9 forms as of March 8, 2013, but US Citizen and Immigration Services (USCIS) is giving employers a 60 day grace period, i.e. until May 7, 2013, to transition to the new forms. recently provided some helpful tips for using the new forms. Here they are: “(1) Make instructions available to employees. Form I-9 has stretched to two pages, and the instructions are now six pages long. The instructions offer more practical guidance on each new I-9 item, so keep them handy. Also, be sure to make the instructions available to employees as they are completing Section 1. Among other things, they provide better definitions of the selections for immigration status (e.g., citizen, noncitizen national, and alien authorized to work). (2) Section 1 must be completed by the employee. It is not acceptable to pre-populate Section 1 unless you also complete the “Preparer or Translator Certification” that follows Section 1. If an employer uses an electronic I-9 system that pulls data from other HR materials, even if the employee provided that data, the employee has not completed Section 1, and preparer certification is required. The employee still must sign Section 1, even if preparer certification is included. (3) E-mail and phone number are optional. The new Section 1 includes boxes for the employee’s e-mail address and phone number. Although the form doesn’t indicate that those fields are optional, the instructions state that they are. Employees who choose not to provide the information should write “N/A” in the box. (4) Social Security number usually isn’t optional with E-Verify. If your organization has registered with and is using E-Verify employees are required to include their Social Security number in Section 1. For employees of other employers, completion of the box is optional.(5) Section 1 must be completed by day one. Employees must complete and sign Section 1 no later than the first day of employment but not before accepting a job offer. (6) New field: first day of employment. Employers completing Section 2 must indicate the employee’s first day of employment. In an I-9 audit, expect U.S. Immigration and Customs Enforcement (ICE) and USCIS to compare that date to the employee’s signature date in Section 1 and the employer’s signature date in Section 2. (7) Reverify. The Section 3 “reverification” and “rehire” fields are now more user-friendly. Specifically, they provide a space for an employee’s new name and boxes to indicate which updated List A or List C document he is presenting to demonstrate ongoing employment authorization. (8) Retain. The new M-274 handbook for employers offers clarity on a number of I-9 retention policies. For example, once an employer has securely stored an I-9 in electronic format (e.g., by scanning the original form), it can destroy the hard copy.”

WHAT FLSA IS NOT ABOUT: I saw an interesting article the other day reminding us what the Fair Labor Standards Act (FLSA) is not about. Of course, FLSA does require payment of a minimum wage and overtime pay to nonexempt employees and it regulates the use of child labor. However, it does not define when someone is full or part time or regulate (or require) use of vacation, holiday, severance or sick pay. It does not dictate breaks or meal periods (but it does require that employees be paid for short breaks if provided and that meal times must be paid for unless the employee is relieved of work duties). Other than pay for over 40 hours, FLSA does not regulate or require premium pay for work on weekends or unusual hours and it does not deal with pay raises or fringe benefits. Finally, FLSA does not regulate number of hours worked for employees over age 16 or deal with or consider discharge notices. Of course, other state or federal laws may cover some of these issues (remember, we employment lawyers have to make a living somehow), but it is not FLSA.

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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


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