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SHRM Newsletter- E-Verify and The Shutdown
Posted on Oct. 7, 2013

This is Utah SHRM Legal-mail no. 2013-18 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).







E-VERIFY AND THE SHUTDOWN: With the federal government shutdown now on its second week, some employers are starting to wonder how it will impact their operations. A number of federal agencies, including the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB) are operating only minimally and with significantly-reduced staff. In the United States Department of Homeland Security, the U.S. Citizenship and Immigration Services (USCIS) office has announced that E-Verify employer accounts will not be available to use during the shutdown. According to an article by national SHRM, the agency also has announced that the “three-day rule” for E-Verify cases is suspended for cases affected by the shutdown and that USCIS will provide additional guidance once it reopens. Employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay. The SHRM article also notes that the time period during which employees may resolve tentative nonconfirmations (TNCs) will be extended. “Days the federal government is closed will not count towards the eight federal government workdays the employee has to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS),” the agency has said. Employers may not take any adverse action against an employee while the employee’s case is in an extended interim case status due to the federal government shutdown, USCIS also has said. National SHRM members can read the full article on E-Verify here:

AFFORDABLE CARE ACT NOTICES DUE: The federal government was shut down last week over disputes regarding the Affordable Care Act (ACA), but implementation of the ACA has continued despite the shutdown. Thus, as of October 1, 2013, all employers covered by the Fair Labor Standards Act (FLSA)--basically all employers--had to give notices to their employees of the availability of ACA insurance coverage through the insurance exchanges now operating in each of the states. The notice must be in writing. Among other things, it must announce the existence of the exchanges and describe them. The notice must also inform the employee that he/she may be eligible for a tax credit if he/she purchases insurance through the exchanges. The notice can be delivered in person, by mail or by email (if the employee consents or if the employee can effectively access it and if access to email is necessary for the employee to do his/her job). DOL has provided model notices for employers to use, one for employers who offer a health plan and one model for those who do not. Note that I have read in commentaries that these models include more information than is required, so if that concerns you, you may also want to work with your health care law lawyer to craft a notice that works for you. You can see the model notices and get other information about the ACA here:

BEWARE OF “PRETALIATION” CLAIMS: The Utah Court of Appeals has recognized a cause of action for “pretaliation” in a case where the plaintiff-employee alleges he was fired not because he had filed a worker’s compensation (WC) claim, but because he was about to do so. The Utah Courts have allowed employees to assert court-created (rather than statutory) tort claims when they believed they suffered retaliation for filing WC claims. In this case, the involved employee was fired about two weeks after he announced his intent to file a WC claim and a few days after he obtained the forms to do so. The WC claim was actually filed several months after the discharge, so the trial court granted summary judgment, concluding that the employer could not have retaliated for the filing of a WC claim when no such claim had been filed at the time of termination. The appeals court reversed, concluding that the cause of action is premised on the protection of WC rights and that such rights also could include “preparing a claim, notifying the employer of the intent to file a claim or discussing the claim with co-workers.”

NEW DOL RULE GIVES FLSA PROTECTIONS TO HOME CARE WORKERS: DOL has published a new rule that provides the protections (e.g. minimum wage and overtime pay) of the Fair Labor Standards Act (FLSA) to home care workers such as home health aides, certified nursing assistants and personal care aides. DOL accomplished this by redefining and narrowing the “companionship” FLSA exemption to largely exclude these types of employees and by only allowing the “live-in” exemption to be claimed by the individual or household and not by third party employer such as home care agencies. An informative set of FAQs from DOL on this issue can be found here:

EMPLOYER LIABLE FOR SALES REPS USING THEIR OWN CARS: A California court has ruled that an employer may possibly be liable for injuries caused by one of its sales rep who was driving after hours. The case involved an employee who got into a car accident and caused injuries after work while driving to get yogurt and go to a yoga class. The person injured sued both the employee and the employer. The court held that the employer might be liable because it required the sales rep to use her own personal car for work and commuting and gave her a car allowance. The court acknowledged the “coming and going” rule which says that an employee’s normal commuting to work is not within the scope of employment for purposes of imposing liability on an employer. However, the court said this rule is overcome by the “required vehicle” rule when “the use of a personally owned vehicle is either an express or implied condition of employment..., or if the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer has reasonably come to rely upon its use and to expect that employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.” As a result, employers who regularly have their employees use a personal vehicle for work purposes should note that they may be held liable, in certain circumstances, for injuries caused by those employees in their personal car.

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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