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Thursday, July 28, 2016

Higher Immigration Penalties Effective August 1

By: Thomas Eden

The U.S. Department of Homeland Security (DHS), the U.S. Department of Justice (DOJ), and the U.S. Department of Labor (DOL) recently each released final rules to increase immigration-related penalties effective August 1, 2106. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires the agencies to make annual adjustments for inflation based on the Consumer Price Index for All Urban Consumers. These increased fines will be retroactive to November 2, 2015.

I-9 “paperwork violations” refers to technically improperly completed I-9s, while the “unlawful hires” refers to knowingly hiring, recruiting, referring, or retaining unauthorized alien workers, or just not being able to locate a Form I-9 for that person. Increased Penalties:

·        For I-9 paperwork violations:  current $110 to a maximum penalty amount of $1,100; Increases $216 to $2,156 per Form I-9;

·         For unlawful hires, current amounts ranging up to $16,000 for each unauthorized worker;

·         Penalties for first offenses involving unlawful hires will increase from a minimum penalty amount of $539 to a maximum penalty amount of $4,313 for each unauthorized worker;

·         Penalty amounts for second offenses up to $10,871 for each unauthorized worker;

·         Penalty amounts for third or subsequent offenses will be up to $21,563 for each unauthorized worker;

·         DOJ’s document abuse penalties increase to between $178 and $1,782. “Document abuse” is a form of discrimination in which the employer asks the employee to provide more documents or different documents than the law requires, or where the employer refuses to accept facially genuine documents;

·         DOJ’s  “Unfair immigration-related employment practices” increase to a maximum amount of $17,816 for each individual discriminated against. This would include refusing to employ someone because the person is not a U.S. citizen or because the person appears to be foreign, even though the person might have valid authorization to be employed in the United States; and

·         DOL penalties increase the penalty scheme that applies to H-1B Labor Condition Application (LCA) violations from currently $1,000; $5,000; or $35,000, depending upon the LCA violation. The new civil penalty limits will increase to $1,782; $7,251; and $50,758.

Common Sense Counsel Best Immigration Practices include:
1.  Annual Form I-9 audits by a workplace immigration attorney with a good faith sign-off; 

2.  Establish and maintain appropriate policies, document retention practices and safeguards against use of the verification process for unlawful discrimination, and to ensure that U.S. citizens and authorized workers do not face discrimination with respect to hiring, firing or recruitment or referral for a fee because of citizenship status or national origin;

3. Have all involved in the hiring process training on how to properly complete the Form I-9; and

4. Appreciate that an ounce of prevention now is priceless!

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Friday, July 22, 2016

NLRB Confirms Joint Employer for Temps

 By: Thomas Eden

The National Labor Relations Board is again changing the rules for employers, but the outcome is not really a surprise. The NLRB ruled 3-1 in Miller & Anderson, Inc., that unions can combine in a single bargaining unit consisting not only of a company’s regular employees, but also of temporary employees performing similar work who are jointly employed by the staffing agency and the employer. The decision is significant particularly in light of the expansive use of “temporary” or “leased” employees in the local workplaces.

Under the standard that has applied for about the past 12 years until now, a combined bargaining unit like this was not allowed unless the employer of the temporary employees (the “supplier” employer) and the employer of the regular employees (the “user” employer) both consented. The Board majority cited data from the Bureau of National Labor Statistics and other publications indicating that there may be as many as 4 million temporary workers in the United States by the year 2022, and noted that temporary employees often work alongside regular employees in industrial and blue-collar jobs.

The Board said, temporary workers are actually employees of the user employer as well as the staffing agency under a theory of joint employment. The Miller & Anderson decision follows the Board’s controversial Browning Ferris Industries decision from last year, which liberalized the test for joint-employer status in the temporary worker context.  Under BFI, the joint-employer relationship will be found when the supplier and user employer share responsibility for determining the essential terms and conditions of the temporary worker’s employment. Read together, BFI and Miller & Anderson create a one-two punch for employers: BFI makes it more likely that temporary employees will be considered “jointly employed” by the user employer, and Miller & Anderson makes it more likely that the “jointly employed” temps will wind up in the same bargaining unit with regular employees.

Common Sense Counsel:  As a result of the Miller & Anderson decision, an employer’s use of temporary employees now creates a higher risk for union organization attempts. Companies will need to reevaluate their labor relations action plans to include the concerns of temporary employees, including the pay and benefits of temporary employees. Disciplining temporary employees could create potential joint-employer liability. 
However, you can be proactive by taking these steps:.

Critically have all your service agreements reviewed;
Make sure they have their own employment policies and employee handbooks; 
Look at how the work performed by your employees is different from, or the same as, the work performed by the staffing employees;
Look at pay, working conditions, type of work, etc, to see if they are the same or uniquely different; and
Include an expansive indemnification clause in your contract.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. The above was taken from a Constangy Client Bulletin. He can be contacted at or 334-246-2901. Blog at with link to full Bulletin.

Friday, July 8, 2016

DOT Employer Cleared for Firing At-Risk Employee

By: Thomas Eden

Eileen Felix was employed by the Wisconsin Department of Transportation (“WisDOT”) in the Division of Motor Vehicles customer service facility in Appleton, Wisconsin. She held the position of DMV Field Agent Examiner and her duties included administering road tests to new drivers applying for licenses (approximately 20 per week) and collecting the fees associated with these transactions, according to court filings.

On the morning of April 18, 2013, Felix’s supervisor heard muffled screaming coming from the public lobby of the office. He found Felix She lying on her side, clutching her cell phone, and crying out. He noticed that she had marks, scratches, and cuts on her right wrist, some of which were bleeding slightly. He would later recall her saying that “[y]ou all hate me … they all hate you … every body hates you” and “[t]hey think you’re crazy … you all think I’m crazy … they want to get rid of you,” as she rolled onto her back and began kicking her legs. He then noticed that she also had scratches and cuts on her left wrist and heard her say “They’re too dull … the knives were too dull” and “God let me die … I just want to die.”

Felix suffered from a variety of mental health disabilities, including posttraumatic stress disorder, major depressive disorder, anxiety, obsessive compulsive disorder, and a medical phobia. She managed the symptoms of her disorders by taking prescribed medication and attending counseling and therapy sessions.

Felix was placed on medical leave and WisDOT ordered her to undergo a fitness for duty Independent Medical Examination (“IME”) in order to determine whether she could return to work. Her supervisor wanted the IME to consider both her own safety and the safety of others in the workplace, as he was concerned about the fact that Felix’s roadtest responsibilities regularly placed her alone in automobiles with 16yearold drivers seeking their first licenses. The IME stated, “Ms. Felix remains at increased risk for potentially violent behavior toward self and others within the workplace.” WisDOT determined that Felix was unfit for continued employment and, after seeking to reasonably accommodate her, terminated her employment on that basis.

Felix then sued under the Rehabilitation Act of 1973, contending that she was discharged solely because of an anxiety disorder and related disabilities. The federal district court entered summary judgment against Felix, reasoning that the undisputed facts demonstrated that she was discharged not solely because of her disabilities but rather based on workplace behavior that indicated to her employer that she posed a safety risk to herself and others.

On Wednesday, the Seventh Circuit of Appeals ruled that the WisDOT demonstrated it legitimately fired Felix for being a safety risk to herself and other employees, shutting down Felix’s suit alleging she was wrongfully fired because of her anxiety and other disabilities.

Common Sense Counsel: as the saying goes, having a qualified medical professional render a correctly worded independent medical opinion, under the ADA or Rehab Act, before you take adverse employment action - “Priceless” !

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Friday, July 1, 2016

Hospitality Industry Employment Hot buttons

 By: Thomas Eden

As Hospitality employers focus on staying competitive in saturated markets, they are increasing being forced to place their focus on 3 hot button employment issues for the remainder of 2016:

First, DOL’s New White-Collar Exemption Rule
On May 18, 2016, the U.S. Department of Labor (“DOL”) announced the publication of a final rule that amends the “white collar” overtime exemptions by making a 100% increase in the salary threshold to $47,476. The final rule is effective December 1, 2016.

Common Sense Counsel:
· identify managers currently treated as exempt who will not meet the new salary threshold;
      · review exempt employees’ primary duties because some job positions in hospitality that have failed the primary duties requirements include entry-level managers, catering managers, executive chefs, and sous chefs;
        · converting employees from exempt to non-exempt implicates a number of other issues, such as estimating how much overtime an individual is expected to work, an employee’s new hourly rate, tracking hours and amending job descriptions to ensure compliance with the overtime laws; and realize there are at least 6 alternative ways to lawfully pay managers that make great business sense.

Second, OSHA’s New Electronic Recordkeeping Rule
On May 12, 2016, the Occupational Safety and Health Administration (“OSHA”) published its electronic recordkeeping final rule which creates numerous new recordkeeping obligations and additional administrative burdens for hospitality employers. OSHA will then attempt to remove identifying information from the electronic records submitted and publish them on a searchable database; many think to shame employers. There are also several new anti-retaliation provisions that specifically address post-accident drug testing restrictions. Effective date: August 10, 2016

Common Sense Counsel:
 · By August, 2016, train employees on the requirements of the final rule and ensure that employees understand that they will not be retaliated against for reporting work-related injuries and illnesses and are, in fact, encouraged to report them;
·       · Retrain the employee(s) responsible for injury and illness recordkeeping on the basics of recordkeeping and provide thorough training on the final rule with an emphasis on protecting personally identifiable information to the maximum extent possible while remaining in compliance with the new regulatory requirements; and 
 · Update your Drug Free Workplace Policy on post-accident testing in line with the guidance so your testing will not be considered retaliatory.

Third, Navigating EEOC Guidance for Transgender Workers’ Restroom Access
The EEOC has offered specific guidance on restroom facility access rights for transgender employees.

Common Sense Counsel:
 · Comply with federal law as interpreted by the EEOC and create policies regarding transgender employees’ use of restroom facilities (including following OSHA’s guidance providing numerous restroom options, such as single-occupancy gender-neutral (unisex) facilities), and the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls; and
·       · Conduct training for managers so that they are aware that they may not require transgender workers to use a particular restroom.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at
with Links on resources.