Department of Labor publishes updated Rule list

Several agencies under the U.S. Department of Labor are making steady progress towards implementing a wide range of rules and guidelines that could put major burdens upon employers, including affirmative action programs, wages, hiring practices, drug testing and safety regulations. The agency's updated Rule List for 2012 gives human resources and safety professionals a look at what the Department is working on, giving them fair warning of things to come in the next two years.

Many of the rules which are in final rule-making phase come from three agencies - MSHA, OFCCP and OSHA. On this list is the DOL's proposed hiring mandate, which would compel employers to hire a mandated quota of handicapped applicants on federally-funded projects, which has been discussed on this blog before. 

Here are some of the rules in the final phase from the U.S. DOL agencies:

• Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors
• Application of the Fair Labor Standards Act to Domestic Service
• Confined Spaces in Construction
• Electrical Protective Equipment
• Handling of Retaliation Complaints
• Lowering Miners' Exposure to Coal Mine Dust 

 Read up and see how these rules might affect you.

Useful E-verify information

Immigration compliance and employment discrimination related to immigration compliance can put employers between a rock and a hard place. As more states require E-verify and the feds are ramping up enforcement against employers who misuse E-verify, it's important to get the facts.

Here are some basics for those who use E-verify:

• Employers must still complete I-9 forms.
• All new hires must be entered within three days of starting work.
• All new hires must be entered into the E-verify system for confirmation of eligibility to work, not just some of them.
• Employers cannot use E-verify to screen existing employees UNLESS a company been awarded a federal contract on or after September 8, 2009, that contains the Federal Acquisition Regulation (FAR) E-Verify clause (see more online).
• E-verify notifications of work eligibility are NOT determinations of a new hire's immigration status. That's not a matter for employers to decide, so don't play cop or make assumptions.
• When you receive a TNC (Tentative Non-Confirmation) notice from the system, be sure to print the notice, provide a copy to the employee and follow the directions. There are employer-specific instructions, as well as instructions for the new hire to follow.
• Log in to E-verify on a daily basis to check for updates on new hires until cases are resolved.

But there's a lot of other information that you need to know, so don't take this article as a definitive answer about the system, rather use it as an invitation to learn more about it if you're not using it - or to brush up on what you know if you are a current E-verify user.

The U.S. Customs and Immigration Services website has a helpful Question and Answer webpage as well as online webinars for those who want to know more about the system. The Justice Department has a useful online Dos and Don'ts resource as well.

Feds cracking down on E-verify misuse

As E-verify usage becomes more common, especially with an increasing number of states passing immigration compliance laws which mandate the use of E-verify for new hires, employers need to be aware of what it is - and what it is not - so they can use it without getting into trouble.

It appears as if the federal Justice Department is taking this issue seriously, first by warning of plans to  ramp up investigations and enforcement actions for E-verify related acts of employment discrimination and then by taking action against employers who misuse of E-verify has an adverse impact upon employees. These are certainly warning signs those who use E-verify - or plan to - should take seriously.

Employee handbook rulings expand NLRB's reach into non-union workplaces

Employers who think that having a union-free workplace will protect them from National Labor Relations Board (NLRB) actions should think again. The federal labor agency has been broadening its reach into examining employer practices in non-union workplaces with no union activity taking place.

One area which is drawing increased scrutiny from the NLRB is the content of employee handbooks, as indicated by recent rulings issued by the board (Banner Estrella Medical Center, 358 NLRB No. 93, Hyundai America Shipping Agency Inc. 357 NLRB No. 80 and Karl Knauz Motors, 358 NLRB No. 164).

Unless the November elections result in a shake-up of the Board, employers and HR staff responsible for writing and maintaining the content of employee handbooks may want to scrutinize these documents for potential troublespots.

Immigration enforcement focusing on employers

Federal immigration officials in Kansas are applying severe measures to punish those who employ undocumented workers:

After an Overland Park couple were indicted, accused of knowingly hiring illegal immigrants and paying them less than other employees, federal authorities said Tuesday that they would seek to seize the couple’s two hotels.

This followed a raid earlier this year which found that roughly half the employees at the two hotels were undocumented workers. The feds allege the couple paid the workers with cash and paid them less than the minimum wage, including to an undercover agent who told the couple he was an illegal alien.

According to Kansas U.S. Attorney Barry Grissom, the agency would continue to go after employers for illegal hires, warning "We are going to enforce immigration laws, and we are going to enforce them equally ... we’re not going to enforce them merely on the backs of (undocumented workers).

This is part of a new approach to dealing with the illegal immigration issue by going after employers. Two years ago, the New York Times reported on the agency's new focus:

The wrong way to handle an immigration audit

There are right ways to handle an immigration compliance audit and there are wrong ways.

In Los Angeles, Yoel A. Wazana, 38, owner and production manager of Wazana Brothers International, Inc., doing business as Micro Solutions Enterprises (MSE), decided to try one of the wrong ways and will now have to plead guilty plead to one felony count of false representation of a Social Security number. This comes after a 2008 raid resulted in the arrest of eight company workers on criminal charges and another 130 for  administrative immigration violations. 

Considering the extent to which he attempted to cover up potential problems, he's lucky to get off so lightly:

According to court documents, shortly after MSE received notification in April 2007 that HSI planned to audit the company's payroll and hiring records, Wazana directed that about 80 of MSE's most experienced employees – at least 53 of whom did not have work authorization – be relocated to another manufacturing facility. When investigators requested hiring records from MSE on three separate occasions, the company failed to provide paperwork for those unauthorized workers. The plea agreements filed in this case also describe how, after learning of the ICE audit, Wazana conducted meetings with MSE's assembly line workers, instructing them to obtain valid work authorization documents and return with those documents, suggesting that he did not care if the documents were actually theirs.

As this blog is not written by an immigration attorney, I won't attempt to tell you the right ways to handle an immigration audit, but based upon my experience in the field of HR (and having passed immigration compliance audits), compliance with the law in hiring practices seems like a good way to keep out of trouble.  

OSHA employer penalties rising

Employer should be wary of increased efforts by federal and state OSHA officials to enforce and penalize employers. While some actions aimed at increasing penalties have been bottle-necked in Congress and in federal courts, but such roadblocks alone won't stop employers from facing increased headaches and costs from OSHA visits to workplaces. Increased OSHA inspections will allow the agency to spot and cite violations with increased frequency, the federal agency is also changing the rules which govern how penalties are applied to greatly reduce the latitude given to employers and set employers up to face quickly-increasing fines for workplace safety violations.

In writing for the Society of Human Resource Management labor attorney Allen Smith reported on a presentation by Nina Stillman, a labor attorney with Morgan Lewis in Chicago. As penalties are capped by existing federal laws, OSHA has increased penalties by ramping up the use of repeat violator citations. Stillman said OSHA “is doing repeats all over the place.” Such citations are very costly for employers, costing up to five times the penalty of the first-offense citation. 

Stillman also reported that OSHA has increased the penalties by:

Feds considering hiring quotas for disabled

In what has been a controversial move contested by major national business organizations, the U.S. Department of Labor is considering a proposed rule that would mandate a seven percent hiring quota for those with federally-funded contracts.

Keep in mind that many local and state programs receive federal funding, thus could fall under the scope of this proposed rule.

Claiming a thirteen percent unemployment rate for those with disabilities, Patricia Shiu, director of the Office of Federal Contract Compliance Programs, said "specific goals" and "real accountability" were needed to ensure increased hiring of disabled individuals.

That means mandates upon employers are in the works.

More states mandating E-verify for employment screening

While this week's Supreme Court decision on Arizona's immigration enforcement legislation may have tied the hands of the state to enforce immigration laws, this ruling did not touch the state's E-verify mandate, which was affirmed by the Supreme Court in last year's ruling in the matter of Chamber of Commerce of the United States v. Whiting. This and other signs point to a growing willingness to mandate E-verify and allow states to implement laws restricting the ability of employers to employ those who don't establish their legal right to work in the United States.

Following Chamber ruling, nine other states joined Arizona in requiring businesses in those states to use E-verify to screen new hires - Florida, Georgia, Indiana, Louisiana, North Carolina, South Carolina, Tennessee, Utah and Virginia. While the dates for the implementation of the laws vary from state-to-state, all ten states require employers to be using this system by the end of this year. But a report from the National Conference of State Legislatures indicates the E-verify mandates are just the tip of the iceberg on issues related to employment and immigration. 


Nearly 500 pieces of legislation related to immigration and employment have been filed in forty-four states, as well as Washington DC and Puerto Rico, in 2011 and 2012. Last year, immigration bills related to employment and law enforcement issues were the overwhelming majority of legislation introduced regarding immigration and employment-related bills remained one of the larger areas of such legislation this year.

While the volume of legislation dropped this year, at least some of this drop-off may be due to the fact that many state legislatures hold shorter - or no - sessions in even-numbered years, thus allowing for less legislation to be filed.

As these efforts are ongoing and the laws will vary from state-to-state, employers and their HR staff would be wise to keep on top of these issues as well as the laws passed wherever they may be doing business. With many of these laws including punitive measures such as hefty penalties, business license  sanctions and even jail, those who choose not to stay on top of these issues do so at their own risk.

US Dep't of Labor Wage/Hour crackdown looming?

My company recently had a site visit from an investigator from the Wage and Hour enforcement by the U.S. Department of Labor. The investigator was cordial, professional and efficient in his visit. But changes in the agency’s approach to handling investigation and penalties should serve as a warning that those friendly visits may become quite costly for an unprepared employer.

Writing in the June 2012 edition of HR magazine, attorney Allen Smith reports that Wage and Hour enforcement by the US DOL is becoming more aggressive, meaning employers will need to exercise additional caution on these issues.

Reporting on a May presentation at the Jackson Lewis Corporate Counsel Conference in Washington, D.C., Smith reported that investigators are now assessing civil penalties on first visits. This is a change from years past, when a first visit would result in a warning and useful guidance on how to improve compliance so as to avoid penalties.

This is just one of a number of reports of ramped-up enforcement.