RECENT DEVELOPMENTS IN LABOR AND EMPLOYMENT

1. RECENT DEVELOPMENTS IN LABOR AND EMPLOYMENT James E. Fagan, III

2. “Hot topics” in labor and employment • Wage & Hour enforcement issues • Occupational Safety and Health Act (OSHA) enforcement issues • Workers’ Compensation and the undocumented worker • E-Verify and I-9 Compliance

3. Wage and Hour: Worker Classification • Federal and state governments are collecting their lost tax revenue • Misclassified workers are going after their lost fringe benefits • Increased government enforcement!

4. Wage and Hour: Worker Classification • DOL’s “Plan/Prevent/Protect Strategy” – extends to wage and hour classification • Employers will be required to provide workers with basic information about their employment, including how their pay is calculated. • Employers that seek to exclude workers from FLSA coverage will be required to perform a classification analysis and disclose analysis to that worker, and retain analysis to give to WHD enforcement personnel who might request it. • Addresses burdens of proof when employers fail to comply with records and notice requirements

5. Practical Impact of Employee Classification Laws on Employers • The status of a particular worker is a product of the facts and circumstances surrounding that worker • IRS has replaced its 20-factor test and is now looking at the facts as a whole regarding degree of control/independence: • Behavioral • Financial • Type of relationship • Test changes depending on issue

6. Workers’ Compensation Developments – undocumented workers still present issues • Are undocumented workers covered? • The Supreme court seemed to hint no in Hoffman Plastic v. NLRB, 535 U.S. 137 (2002) – violation of Immigration Reform and Control Act (IRCA) re: NLRA back-pay • But many subsequent appellate courts have not read HoffmanPlastic to deny benefits, ruling that the IRCA does not preempt state or federal workers’ compensation laws and/or that the definition of employee includes undocumented workers

7. Workers’ Compensation Developments – undocumented workers still present issues • Economy Packing Co. v. Illinois WCC, 901 N.E.2d 915 (Ill. Ct. App. 2008)(IRCA preemption) • Curiel v. Environmental Management Services, 655 S.E.2d 482 (S.C. 2007)(IRCA preemption) • Design Kitchen and Baths v. Lagos, 882 A.2d 817 (Md. 2005) (definition of employee) • The Virginia Supreme Court ruled the other way in 1999, but the legislature corrected this quickly • Arizona appears to be the lone holdout

8. Workers’ Compensation Developments – undocumented workers still present issues • Despite a consensus on coverage, issues remain: • Eligibility for disability payments (must prove not able to work – undocumented workers cannot prove any eligibility) – cases holding that ability is without regard to status • Disclosure of disability status in discovery – may lead to deportation – cases hold that questions on status not relevant • Ethical questions for lawyers – can one “ignore” illegal status?

9. New OSHA Standards • Employers will be required to implement an Injury and Illness Prevention Program. • Employers are required to train employees in a language employees can understand. • Severe Violator Enforcement Program and Increased Penalties

10. I-9s and E-Verify Completing the Form I-9 • As the employer, you must ensure that each employee completes Section 1 of the Form I-9 before his/her work begins. You must complete Section 2 within 72 hours after the employee begins work (unless he/she is hired for a total period of less than three days). If possible, complete the entire form before the employee starts working.

11. I-9s and E-Verify • For Section 2, let the employee choose the approved document(s) from the “Lists of Acceptable Documents” (Lists A, B, and C) on the Form I-9 to establish his/her identity and employment eligibility. An employee must produce one valid document from List A or one valid document from List B and one from List C. Do not ask an employee to produce any particular document, and do not require any employee to produce more or different documentation than is required by law.

12. I-9s and E-Verify • If an employee indicates at Section 1 that he/she is only authorized to work in the U.S. for a specified period of time, record the date on which work authorization will end. At least 90 days before that expiration date, remind the employee that his/her work authorization will soon expire and ask the employee to provide, on or before the expiration date, new documentation showing continued eligibility to work in the U.S. Complete Section 3 of the Form I-9, using the new documentation, on or before the expiration of the employee’s original work authorization.

13. I-9s and E-Verify • Accept any documents that an employee offers from the Form I-9’s Lists of Acceptable Documents if they reasonably appear: (a) to be genuine and (b) to relate to the employee. You must review original document(s) and may not accept photocopies for this purpose.

14. I-9s and E-Verify Maintaining Your Employees’ I-9 Forms • You must have a Form I-9 on file for every current employee. • You must keep a Form I-9 on file for every former employee for three years after the employee’s date of hire or one year after his/her employment ends, whichever is later. • If you choose to make copies of the Section 2 documents provided by an employee, you must do so for all employees and you must keep the copies with the I-9 forms. • Maintain I-9 forms separately from other personnel files. • You may keep I-9 forms in paper, microfiche,microfilm or electronic form.

15. I-9s and E-Verify • E-Verify is a free government “check” on immigration status. It does not replace I-9 requirements, but rather it is a way to check the credentials provided. • It is voluntary, except for most federal contractors and subcontractors and pursuant to certain state laws. • Virginia requires state agency participation.

16. QUESTIONS?