New Passport Card Is Acceptable for I-9 Process

U.S. Citizenship and Immigration Services (USCIS) announced Aug. 8 that the new U.S. Passport Card may be used in the Employment Eligibility Verification (Form I-9) process.

Last month, the State and Homeland Security Departments announced that the new passport card was in full production. The new card provides a less expensive and more portable alternative to the traditional passport book. It will speed document processing at United States land and sea ports-of-entry for U.S. citizens traveling to Canada, Mexico, the Caribbean, and Bermuda.

While the new card is more limited in its uses for international travel (e.g., it may not be used for international air travel), it is a valid passport that attests to the U.S. citizenship and identity of the bearer. Accordingly, the card may be used for the Form I-9 process and may be accepted by employers participating in the E-Verify program.

The passport card is considered a "List A" document that may be presented by newly hired employees during the employment eligibility verification process to show work authorized status. "List A" documents are those used by employees to prove both identity and work authorization when completing Form I-9.

For more information on the Form I-9 process, call the USCIS National Customer Service Center at (800) 375-5283 or visit its website at www.uscis.gov.

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Social Security No-Match Issue Can Arise in Different Ways

As reported in previous issues of FELS Newsletter, an employer can learn about employee Social Security number (SSN) no-matches in different ways.

Besides getting a letter from Social Security Administration (SSA) that a group of reported SSNs did not match SSA records, an employer might receive a garnishment notice for someone whose name is not in the employer's payroll database but that also includes an SSN associated with the name of one of its employees.

Or, an employer might get a phone call from someone claiming one of its employees is fraudulently using the caller's SSN.

The incident of this type most recently reported to FELS arose from an employer's receipt of a letter from a county social services agency. The letter stated the Employment Development Department had informed the agency that an employee of the employer was using the SSN of one of the agency's welfare-recipient clients. The agency threatened to refer the matter to the district attorney if the employer did not correct its records.

Given how the Department of Homeland Security (DHS) applies the "constructive knowledge" theory to an employer's receipt of suspicious information about an employee's SSN, an employer facing one of these situations ignores it at its peril.

In DHS's eyes, the receipt by an employer of information that an employee's SSN might not relate to him doesn't mean the employee lacks employment eligibility. Rather, it is how the employer responds to that information that DHS considers important.

Should it learn the employee lacks employment eligibility, DHS could assert the employer failed to take reasonable steps to resolve the discrepancy, pointing to that failure as evidence the employer had constructive knowledge the employee lacked employment eligibility. DHS could then claim that by continuing to employ the employee despite having that knowledge, the employer broke the law.

Therefore, to protect itself from a charge that it had constructive knowledge of an employee's lack of employment eligibility, an employer should take some reasonable action to investigate and resolve the SSN discrepancy:

Steps to Take: When faced with an SSN no-match - whether it be a garnishment, third-party notification, or governmental agency claim of SSN misuse - here are some steps to consider taking:

1. Look at the employee's SSN card and compare its information with that in your payroll records. If your records don't match the information on the card, then correct your records and send SSA a Form W-2c.

But if your records do match the information on the card, then go to step 2.

It is useful to photocopy each new employee's SS card and attach it to the employee's Form W-4 for future reference. This practice eliminates the necessity to discuss the matter with the employee prematurely.

2. If a third party other than SSA is claiming the SSN belongs to someone other than your employee, call SSA and verify your employee's SSN. When you call SSA, you will need the employee's name, sex, date of birth and SSN.

If SSA verifies the employee's SSA, advise the employee that someone else is using his SSN.

But if SSA's records don't match the employee's name to the SSN, then go to step 3.

3. Discuss the matter with the employee. If the employee admits he is using a fraudulent SSN and cannot give you a real SSN due to his immigration status, then discharge the employee.

4. If the employee assures you his SSN is legitimate, then tell him to go to SSA and resolve the issue and return to you with information about the resolution. Give the employee a letter notifying him of the discrepancy and your advice to resolve the issue with SSA. See sample letter at the end of this article.

5. If the employee returns with a new SSN and/or a new name, then call SSA to verify the SSN. You may consider or may need to discharge the employee if you determine he obtained employment with your company by using fraudulent documents.

Sample Letter to employee

LETTER TO EMPLOYEE

ABOUT SSN NO-MATCH

[Date of letter: ]

Re: Social Security Number:

Dear [Employee's Name: ]

We have received notification from:

[Check appropriate box]

Social Security Administration

Internal Revenue Service

State Franchise Tax Board

Employment Development Department

A person claiming to have the same SSN that we have on file for you

Other

that your Social Security number (SSN) shown above may not relate to you.

[Check appropriate box]

The entity or person noted above is asking us to:

Garnish your wages

Resolve the discrepancy

Discontinue using the SSN

Other

This letter is our notification to you of this issue.

To resolve this problem, please show me your Social Security card to verify that the name and SSN we have on file for you is correct.

If the name or SSN we have on file for you is not your name or SSN, then give us your name or SSN so we can correct our records.

If the name and SSN we have for you are your true name and SSN, then contact the entity or person noted above to resolve the conflict.

Once you have resolved this apparent discrepancy, you must report to us the resolution. If you provide us with a new name or SSN, we will verify that new information with Social Security Administration.

Sincerely,

[Company representative's name: ]

I acknowledge I received this notice.

Employee's Signature:

Date:

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Employers May Not Require Employees to Falsify Hours Worked to be Paid Wages

Gov. Arnold Schwarzenegger on Aug. 1 signed into law a bill forbidding an employer from conditioning a wage payment on the falsification by the employee of the hours the employee worked during a pay period.

The bill, Assembly Bill 2075 (Fuentes), amended Labor Code section 206.5, which already prohibits an employer from requiring "the execution of a release" related to wages unless those wages have been paid.

The amendment specifies that "the execution of a release" includes "requiring an employee, as a condition of being paid, to execute a statement of the hours he or she worked during a pay period which the employer knows to be false."

The new provision takes effect Jan. 1.

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"Mediated Election" Bill Advances

Under current law, the only way agricultural employees in California can indicate whether they want a union to be their collective-bargaining representative is by a secret-ballot election. The employees cast ballots in a voting booth at polling place overseen by the Agricultural Labor Relations Board (ALRB).

AB 2386 (Núñez, D-Los Angeles) would create a new, completely unsupervised process called a "mediated election." That process would allow union agents to: give employees ballots; tell employees to mark their ballots; tell employees to put their marked ballots in envelopes and to seal and sign those envelopes; and collect and deliver the envelopes to the ALRB. All this would occur without supervision by the ALRB or the so-called "mediator."

The union would need only file a simple petition for such an "election," where the only choices given to voting employees are immediate unionization or an ALRB-supervised onsite election.

Further, AB 2386 would severely restrict a farm employer's First Amendment right to discuss his views of unionization with his employees.

The bill is moving swiftly through the Legislature during these final days of its session. While farm groups are working together to defeat AB 2386, the measure is expected to reach the governor's desk.

Please consult the California Farm Bureau Federation Farm Team Web page http://www.cfbf.com/issues/index.cfm for more information to help defeat AB 2386.

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Federal Contractors Will Have to Use E-Verify

Federal government contractors will be required to use E-Verify to verify the work authorization of all new hires and existing personnel assigned to perform work on future federal contracts, according to an executive order issued by President Bush.

Executive Order 12989 declares that "adherence to the general policy of contracting only with providers that do not knowingly employ unauthorized alien workers and that have agreed to utilize an electronic employment verification system designated by the Secretary of Homeland Security to confirm the employment eligibility of their workforce will promote economy and efficiency in Federal procurement."

At a press conference, DHS Secretary Michael Chertoff designated E-Verify as the system to be used under the order.

"A large part of our success in enforcing the nation's immigration laws hinges on equipping employers with the tools to determine quickly and effectively if a worker is legal or illegal," Chertoff said. "E-Verify is a proven tool that helps employers immediately verify the legal working status for all new hires."

The verification of these workers will ensure "stability and dependability" in federal government activities because contractors that employ illegal aliens "cannot rely on the continuing availability and service of those illegal workers, and such contractors inevitably will have a less stable and less dependable workforce than contractors that do not employ such persons," according to the order.

The executive order does not address whether subcontractors also will be required to use E-Verify, but it grants rulemaking authority to DHS. Chertoff said that the agency "would have to issue rules to implement the order" but declined to address the issue of subcontractors.

The executive order will amend the Federal Acquisition Regulation to the extent necessary to "implement the debarment responsibility, the employment eligibility verification responsibility, and other related responsibilities."

The order does not modify debarment responsibilities, and a contractor may be debarred by the head of the contracting agency based on an attorney general determination that the contractor violated the Immigration and Nationality Act.

It is "embarrassing" to discover illegal aliens working on federal projects, Chertoff said. The executive order will help the federal government "get our own house in order" to make sure illegal aliens are not working on government projects and to set an example for other employers that may consider using E-Verify, he said.

In response to a question, Chertoff estimated that the executive order would affect, at a minimum, hundreds of thousands of employees and perhaps as many as 1 million workers.

[Source: National Council of Agricultural Employers (NCAE)]

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Shade Requirement Raises Questions

The shade requirement under Cal/OSHA's heat-illness prevention regulation, GISO section 3395, has raised many questions, especially during recent Cal/OSHA inspections.

The main issues are: What qualifies as shade? What does "providing access. . . at all times" mean?

Employers are being told that while grapevines do not provide shade, a tree with an adequately dense canopy that allows employees to rest under it in a comfortable position is considered shade.

Further, some employers have been told they must provide enough shade for all employees during their est periods and meal periods.

Given these questions, Carl Borden, associate counsel for California Farm Bureau Federation and legal adviser to FELS, offers these guidelines:

While the standard does not mention the need to provide shade during rest periods or meal periods, Division of Occupational Safety and Health Chief Len Welsh has said the standard applies during those breaks when taken by employees at the worksite - as is usually the case in agricultural settings - just as it does while they are working.

Welsh also noted that employees might be much more inclined to seek shade during those breaks, which the standard allows them to do, because they do not lose any time working when they do so.

Welsh added that shade must actually be present and that merely having a canopy or umbrella available for erection if an employee asks for a shade break does not comply with the standard.

Noting there's a big difference between 90 and 105 degrees Fahrenheit, Welsh said that Cal/OSHA inspectors interpret the requirement for "access to shade" more strictly during exceptionally hot weather, because the intent of the standard is to assure the type of access that will provide sufficient cooling to prevent illness.

According to Welsh, the bottom line is that there must always be enough shade to accommodate those employees who seek it to cool off as required by the standard. This does not mean that there must be enough shade to accommodate all employees on the shift at the same time, but employers should anticipate that the hotter the weather gets, the more employees will seek shade during their breaks.

Cal/OSHA enforcement staff has been telling growers that shade is adequate if it's sufficient to prevent a shadow. Of course, this does not begin to address the problem of "providing access. . . at all times" in areas where there are no trees whatsoever, and growers are expected to provide artificial shade.

That brings us to the question of how close must shaded areas be to employees. Answer: It's not clear!

The standard's shade provision is what's called a performance-based provision, meaning it needs to be applied so as to achieve the standard's underlying goal -- here, the prevention of heat illness in employees.

So, from a real-world standpoint, how close to employees do shaded areas need to be to achieve that goal? That depends on the various risk factors involved, such as the temperature, the humidity, employee exertion level, shift length, employee acclimatization, and other employee personal risk factors, some of which won't be known to the employer. But in the end, shaded areas need to be close enough to employees so, that under the particular circumstances, they can get to it to cool down before they incur heat-illness symptoms.

This means that the hotter and more humid it is, the harder employees are working, and so on, the closer the shade needs to be to employees.

The sample heat-illness prevention procedures published by Cal/OSHA consultation suggest that shade be "in close proximity (i.e., no more than 50-100 yards) to the work activity." That probably equates to about a one-half to one minute walk from where employees are working.

While it might not be practical to provide shade that close to employees in many ag production settings, that's apparently the only specific published guidance from the agency on the subject.

Sad but true, but there just isn't any bright line on where shade must be or in what form or quantity. FELS will keep subscribers posted through the Newsletter as answers to these questions become known.

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Housing Farm Employees Triggers Requirements

Like other employers, the law generally does not require agricultural employers to house their employees. An exception from this general rule is that an employer must house employees under the H-2A foreign agricultural worker program.

If an employer chooses to house farm workers, certain state and/or federal requirements must be met.

State Law: California's Employee Housing Act generally applies to two types of employee housing:

• Living quarters provided for five or more employees by the employer

• Housing accommodations or structures in specified rural areas provided for five or more agricultural workers employed on a temporary, seasonal, or permanent basis, not maintained in connection with any workplace.

An operator of employee housing must apply for and obtain a permit to operate before five or more employees occupy a facility.

Federal Law: The Migrant and Seasonal Agricultural Worker Protection Act covers a facility or real property used as housing for one or more migrant agricultural workers. A migrant agricultural worker is a person employed in agricultural employment of a seasonal or other temporary nature who needs to be absent overnight from his permanent place of residence.

Each person who owns or controls the facility or property must ensure it complies with all applicable safety and health standards. If more than one person is involved in providing the housing (e.g., where an agricultural employer owns it and a farm labor contractor or other person operates it), both are responsible for it.

Encampments; Unauthorized Occupants: Sometimes persons - be they a grower's own employees or otherwise - "house" themselves on the grower's or other landowner's property. These situations pose peculiar problems and potential liabilities for growers and other rural landowners.

A grower who knows workers are camping or otherwise living in substandard conditions on his land faces prosecution for housing violations. It thus behooves the grower to deny persons permission to live on his land (except, of course, in proper, authorized housing).

Further, a grower who discovers persons are encamped on his land should promptly act to remove them from it; if necessary, the sheriff's department should be contacted for assistance.

(Source:Menu Carl Borden)

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The following articles were provided courtesy of Barsamian & Moody, The Employers' Law FirmSM, which participates in the Group Legal Services Program for FELS subscribers. These articles are intended to provide employers with current information on labor and employment law. Their contents should neither be interpreted nor construed as legal advice or opinion. Please consult with Barsamian & Moody in Fresno at (559) 248-2360 or toll-free at (888) 322-2573 for individual responses to questions or concerns about any given situation.

Court Explains Rest-Period and Meal-Period Rules

On July 22, the California Court of Appeal issued its decision in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum). The opinion potentially makes sweeping changes in the rules regarding rest periods and meal periods that have resulted in so much litigation against employers over the past several years.

According to a memorandum from California Labor Commissioner Angela Bradstreet, her Chief Deputy, and their Chief Legal Counsel, which is directed to all Labor Commissioner staff, the decision's findings are "binding upon the Division of Labor Standards Enforcement (DLSE)."

Meal Periods: The court held that Labor Code section 512 and the meal-period requirement set forth in the orders of the Industrial Welfare Commission (IWC) mean that an employer must make 30-minute duty-free meal periods available to non-exempt employees, but the employer need not ensure that employees actually take the meal period. However, an employer may not "impede, discourage or dissuade" employees from taking meal periods, as doing so would effectively render the meal period unavailable.

The court also held that meal periods must be available to non-exempt employees who work more than five hours per day, unless the employees' "total work period per day" is six hours or less, and both the employee and employer agree by "mutual consent" to waive the meal period.

The court said an employer must make a second 30-minute meal period available to non-exempt employees who have a "work period of more than 10 hours per day" unless the employees "total hours" per day is 12 hours or less, both the employee and the employer agree to waive the second meal period by "mutual consent", and the first meal period "was not waived." The court held that such waivers need not be in writing.

Finally in regard to meal periods, the court held that employers are not required to provide a meal period for every five consecutive hours worked, the so-called "rolling five-hour" requirement.

Before Brinker, it was unclear whether an employer had to provide a meal period after no more than five hours were worked, and if the employee failed to take a meal break before the five hours expired, it was an automatic violation of the law. The Brinker decision, however, held that the requirement is to provide the proper meal period(s) based upon the hours worked "per day." Thus, if the employee does not take his or her meal period before working five hours, that would not violate the law, as long as he or she was allowed to take the meal period at a practicable time.

Rest Periods: With regard to rest periods, the court held that the rest period requirement set forth in the IWC orders mean that employers must make rest periods available, but need not ensure that the employees are actually taking them. Again, however, employers cannot "impede, discourage or dissuade" employees from taking rest periods.

The court further confirmed that employers need only authorize and permit rest periods every four hours or major fraction thereof.

The court, however, disagreeing with a prior Labor Commissioner interpretation, found that the phrase "major fraction thereof" does not mean that the employee is entitled to a break as soon as he or she works more than two hours. Rather, the court ruled that rest periods must be allowed if an employee works between three and one-half hour and four hours, but if four or more hours are worked, it need be given only every four hours, not every three and one-half hours.

The court, however, also ruled that rest periods "insofar as practicable shall be in the middle of each work period." Thus, as long as employers make rest periods available to employees, and try to schedule them in the middle of the work period before and after the meal period, where that is practicable, the employers are in compliance with the rest period requirement.

According to the Memorandum from Angela Bradstreet, "All [DLSE] staff must follow the rulings in the Brinker decision effective immediately and the decision shall be applied to pending matters." Thus, the decision should be applicable to any pending Labor Commissioner claims.

Class-Action Implications: The Brinker decision also has significant impact on the recent trend of bringing meal and rest period claims as class actions.

In its decision, the court ruled that because employers need only make meal and rest periods available, and need not ensure that they are actually taken, such claims may not be amenable to class action status.

Rather, the court held, such claims require an individualized inquiry as to why the employee did not take the meal or rest period. Was the employee choosing to continue to work so as to earn more money, if the employee is earning a piece rate for example, or was the employee precluded from taking the break by the employer? Because the answers to such questions may well vary from employee to employee, they are not practical for class action status.

What This Means for Employers: It is very important to keep in mind that the Brinker decision will almost assuredly be appealed to the California Supreme Court. Therefore, employers may wish to continue to operate under the prior rules just to be on the safe side.

However, other employers may choose to start adhering to requirements as spelled out in this decision. Either way, we strongly encourage employers to always get a written waiver any time that an employee waives a meal period, as it is still possible for employees to claim that they were prevented from taking a meal period, even under the Brinker decision.

Unless the Supreme Court changes this decision, however, employers now have a powerful tool in combating the ever present threat of costly wage-and-hour litigation.

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