Voluntary Respirator Use Requires Notice to Employees

The new respiratory protection regulation of the Department of Pesticide Regulation (title 3, Cal. Code of Regs. section 6739) provides for the voluntary use by employees of respirators. This new provision eases some prior requirements for their use.

Under the new rule, an employer that permits voluntary respirator use must provide respirator users with information stated in subsection (r) of section 6739 and post this notice next to a copy of the Hazard Communication Information for Employees Handling Pesticides in Agricultural Settings (Pesticide Safety Information Series leaflet A-8). A copy of the new notice is located on page 2 of this issue of FELS Newsletter.

Before allowing voluntary respirator use, an employer must determine that the use will not in itself create a hazard. The employer may then either provide respirators or let employees voluntarily use their own respirators.

Under the employer-supplied voluntary respirator provision, the employer must establish and implement provisions of a written respiratory protection program necessary to ensure that (1) an employee using a respirator voluntarily is medically able to use that respirator and (2) the respirator is cleaned, stored, and maintained so its use does not present a health hazard to the user.

Employers need not include a written respiratory protection program for employees whose only use of respirators is the voluntary use of filtering facepieces (dust masks).

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UI Claim Raises SSN No-Match Issues

A new twist on an old theme has started to appear via Employment Development Department (EDD) claims for unemployment insurance. The old theme is the mismatching of the claimant's name and Social Security number (SSN).

A FELS subscriber reported he received a UI claim for a person he had never employed. The claimant's SSN, however, is the SSN being used by one of his current employees.

This raises several concerns. One is that the UI claim might be charged to the company's UI account despite the discrepancy. Another is that if it were to learn about the no-match and that the subscriber's employee lacks employment eligibility, the Dept. of Homeland Security (DHS) might assert the no-match gave subscriber "constructive knowledge" of that lack, at least where the employer had failed to take reasonable steps to resolve the discrepancy.

So, the question is: How should this be handled? The answer is much the same as when dealing with a Social Security Administration (SSA) no-match letter.

The first step is to review your records to ensure the employee's data was entered correctly. This means you will need to have a copy of the employee's Social Security card or IRS Form W-4.

Report to Social Security any correction to the employee's data using Form W-2c and to EDD by returning the UI claim form with the corrections.

If the employee's data is correct, then notify EDD that the person named in the claim never worked for your company and that you refute the UI claim. Also, notify EDD that you employ another person using the SSN being used by the UI claimant.

Finally, notify your employee in writing that another person is using your employee's SSN and that he should try to resolve the issue with SSA. Ask the employee to notify you of any resolution to the SSN discrepancy.

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IRCA, E-Verify and Immigration Compliance Laws* (Part I)

*(Reprinted with permission of the author Greg Siskind. Greg Siskind is a partner in Siskind Susser Bland's Memphis, Tennessee, office. He can be reached by email at gsiskind@visalaw.com or by phone 800-343-4890. Web site: http://www.visalaw.com/hq.html. © 2007 Siskind Susser Bland)

Introduction:

On Jan. 1, employers in Arizona and Tennessee were to start complying with controversial new immigration laws that make those states enforcers of immigration law right along with the federal government.

Whether state and local governments have the legal right to be doing this is the subject of many court battles around the country since the Founding Fathers clearly gave Congress the sole authority to regulate immigration. But with a Congress seemingly paralyzed in its attempts to get a handle on immigration policy and with 1400 bills pending around the country, the new reality is that employers will need to comply with a whole new set of laws on top of the existing federal rules.

The Arizona and Tennessee rules are similar in sanctioning employers who violate immigration laws with the revocation of their business licenses. This punishment is seemingly much more serious than the federal punishment of a fine since loss of a business license is really the death penalty for a business.

Both rules provide a defense if employers have been complying with Form I-9 rules. Tennessee provides an additional safe harbor if employers have used the new E-Verify electronic employment verification system. Arizona goes a step further in actually mandating that all employers use E-Verify.

This represents a major expansion in the number of employers using E-Verify, and it is far from clear whether the E-Verify system can handle the additional load. A recent report commissioned by the Dept. of Homeland Security (DHS) itself noted there is an unacceptable false positive rate and that as many as 10% of naturalized citizens show up in E-Verify as being unauthorized to work.

We provide information in this article on the new Arizona and Tennessee laws, a primer on the E-Verify system, and information on Form I-9 requirements, including reference to the new Form I-9 that must now be used. Employers violating immigration laws will likely face considerably more enforcement in 2008, and we intend to cover the issue in great depth.

The E-Verify Electronic Employment Eligibility Verification System

What is E-Verify? E-Verify, formerly known at the Basic Pilot Program, is a free Internet-based system that employers use to confirm the identity and employment eligibility of newly hired employees. It is mandated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). The system compares Social Security number (SSN) data and information in DHS' immigration databases to the employee's name and other Form I-9 information to confirm the employee matches. The Social Security Administration (SSA) has 425 million numbers in its database, and DHS has 60 million records in its system. If an employee's information does not match, the U.S. Customs and Immigration Service (USCIS), a part of DHS, will notify the employer of the non-confirmation. The average response time in E-Verify is three to five seconds.

How many employees are typically run through E-Verify in a year? More than 33,000 employers now use E-Verify. During the most recent fiscal year, nearly two million queries were made in the E-Verify system. That number is expected to increase dramatically as several states are requiring employers in them to use E-Verify.

Ninety-two percent of verification queries are instantly verified.

According to DHS, the top industries using E-Verify are food services, drinking establishments, administrative and support personnel, professional and technical services, other information services, and clothing and accessories stores.

Who administers E-Verify? E-Verify, a partnership of DHS and SSA, is administered by USCIS. 

How does E-Verify work? An employer submits to the E-Verify Web site information provided on an employee's Form I-9. The E-Verify system returns one of three results:

* "Employment Authorized" - The employee is employment authorized.

* "SSA Tentative Non-Confirmation" - The SSA database is showing the employee's name and social security number are not matching.

* "DHS Verification in Process" - DHS will respond within 24 hours with either an Employment Authorized or DHS Tentative Non-Confirmation.

If a worker shows up as "employment authorized" the employer will record the system-generated verification number on the Form I-9.

An employer getting a "tentative non-confirmation" must promptly provide the employee with information on how to challenge the information mismatch, and the employee can then contest the determination and resolve the mismatch with SSA or DHS. The employee will then have eight federal government workdays to resolve the issue. The employee may continue to work during that time.

If, however, the employee does not contest the finding, the determination is considered final, and the employer may discharge the employee and resolve the case.

An employer must post a notice in an area visible to prospective employees that it participates in E-Verify. Also, the employer must post in an area visible to prospective employees an anti- discrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices, Department of Justice (DOJ).

What computer requirements are necessary to use E-Verify? Users need an Internet-capable Windows-based personal computer and a web browser of Internet Explorer 5.5 or Netscape 4.7 or higher (with the exception of Netscape 7.0). USCIS warns employers to "white list" the email address mailto:mEmployer.Pilots@dhs.gov in their spam filters.

Can a company batchload data to E-Verify? Yes. DHS has a real-time batch method that requires a company develop an interface between its personal system or electronic Form I-9 system and the E-Verify database. Employers interested in more information on this, including design specifications, should call (800) 741-5023. What is the required timetable for using E-Verify? An employer may perform E-Verify any time after a job applicant accepts an offer of employment and after Form I-9 is completed for the new employee. This can be before the start date (as long as an employer is not pre-screening applicants), but in no case later than three business days after the new employee's actual start date.

This deadline does not apply where the new hire has no SSN, in which case the employer should wait until the SSN is available (see question below about employees without SSNs).

A query may be submitted before the start date, but the employer needs to be careful not to pre-screen applicants and may not delay training or a start date based on a tentative non-confirmation, and the new hire may not face adverse consequences due to the use of E-Verify unless a query results in a non-confirmation.

An employer may not accelerate a start date for a new hire because employment authorization is confirmed.

An employer must be consistent in the timing of a query so as to avoid discrimination.

Does E-Verify tell an employer anything about the immigration status of a new hire? No. The system verifies only an employee's authorization to work and not immigration status.

What is E-Verify's photo screening tool? A photo tool was incorporated into E-Verify in September. It lets an employer match the photo on a new hire's Employment Authorization Document (EAD) (I-766) or Permanent Residence Card (green card) (I-551) to the photo that USCIS has on file for the corresponding card that was actually issued. The tool lets employers detect instances of document fraud.

What information does an employer need to supply for each employee? After a new hire completes Form I-9, the employer submits a query that includes this information from that form:

* The employee's name and date of birth,

* The SSN,

* The citizenship status to which the employee attests,

* An A number or I-94 number, if applicable,

* The type of document provided on the Form I-9 to establish work authorization status, and

* Proof of identity and, if applicable, its expiration date.

What about employees who don't have SSNs yet? E-Verify cannot be used for employees who do not yet have an SSN. Form I-9 still needs to be completed, and after the SSN is received, the query needs to be filed with E-Verify. An employee who otherwise meets the requirements to begin work without an SSN should be permitted to work until an SSN is received and the employee has gotten a negative response from DHS on the name check.

What happens if E-Verify issues a non-confirmation finding?

For SSA non-confirmations: An employer receiving a tentative non-confirmation from SSA must print out the notice and provide it to the employee so the employee can decide whether to contest the finding. An employer that erred in inputting data should try to refile with E-Verify.

The employer must then record the case verification number, review the data input in the system to ensure there was no error, and find out if the employee will contest.

If the employee will contest, E-Verify will give the employer instructions on referring the employee to an SSA field office. The employer will print out instructions on how to seek correction with SSA and provide the letter to the employee with instructions that the matter must be resolved within eight federal government work days.

After 10 federal government work days, the employer will re-query E-Verify to get a confirmation or a final non-confirmation, unless SSA instructs otherwise.

For DHS non-confirmations: An employer receiving a tentative non-confirmation from SSA must print out the notice and provide it to the employee so the employee can decide whether to contest the finding. An employer that erred in inputting data should try to refile with E-Verify.

An employer finding a photographic no-match for an employee who provides a document for which E-Verify has transmitted a photograph must print the photographic non-confirmation notice and give it to the employee so the employee can decide on whether to contest the finding.

If the employee will contest a regular non-confirmation case, the employer will print out instructions, and the employee must phone DHS within eight business days to attempt to resolve. In the case of a photographic non-confirmation, the employer will provide the employee with a referral letter to DHS. DHS will provide the results within 10 days of the referral unless it determines it needs more time.

In photographic non-confirmation cases, the employer will send a copy of the employee's Form I-551 permanent residency card or I-766 employment authorization document by scanning and uploading the document or mailing a photocopy via express mail (to be paid by DHS). Where an employer cannot decide if the photograph matches or not, the employer should forward the photographic document to DHS for DHS to decide.

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The following article was provided courtesy of Barsamian & Moody, The Employers' Law FirmSM, one of two law firms participating in the Group Legal Services Program for FELS subscribers. It is intended to provide employers with current information on labor and employment law. Its 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.

"Spanking" Case Overturned by Court of Appeal

A California appellate court has thrown out a $1.7 million sexual harassment judgment for a Fresno woman who was spanked in front of co-workers during "motivational" exercises at a local alarm installation company. The claimant had worked at the company's Fresno office for five months before quitting and filing her claim.

In this case, which drew national attention, the employer had a practice of using motivational exercises in which employees were spanked with a competitor's yard sign while other employees looked on and cheered. The practice grew out of competition between various sales teams, in which the winning team would poke fun at the losing team, throw pies at them, make them wear diapers, feed them baby food, and spank them with the competitor's yard sign.

The company admitted the practice, but said that the claimant was a willing participant, and that the process was not discriminatory in that it was applied equally to both men and women. The company also said that the reason the claimant quit was because she was passed over for a promotion, not because of the spankings.

Although three other women had reached out of court settlements with the company, and the company offered the woman $150,000 to settle, the case went to trial. The jury awarded the woman $1.7 million. The employer appealed the case 5th District Court of Appeal. That court decided that the key issue was not simply whether she was spanked, but rather, if she was spanked because she was a woman. They threw out the verdict and ordered a new trial.

In reaching its decision, the appellate court cited a higher court ruling in a well-known sexual harassment case filed by a worker on the TV show "Friends." In that case, the California Supreme Court ruled that under the circumstances of that particular case, vulgar language and sexually explicit statements made by male writers for a popular television show in front of a female employee did not constitute sexual harassment. The plaintiff was a writers' typist on the show "Friends" who, after about four months on the job, was fired for performance problems. She sued the writers and employer for sexual harassment based on a theory of hostile work environment.

The defendants did not dispute that sexually coarse and vulgar language was used by the writers, nor did they dispute other allegations of sexual behavior, like repeatedly discussing one of the writers missed chance to have sex with one of the show's lead actresses, drawing vulgar pictures and frequently discussing their sexual activity with wives and girlfriends. The Supreme Court held that the sexually coarse and vulgar language did not involve and was not aimed at the plaintiff or other women who were actually in the workplace, that the plaintiff was warned before she was offered the job that sexually explicit language was used in the workplace as part of the writers' creative process and that no reasonable court or jury could conclude that such language constituted harassment within the meaning of FEHA. The court recognized that the plaintiff had been warned of such discussion ahead of time, and that the discussions of the writer's sexual exploits were often used to create scenes for the show, showing that the discussions were part of the creative process.

It was found that since the discussions were not directed at the plaintiff or other women in the workplace, the discussions were part of the process through which the writers conducted their jobs, and the plaintiff was warned ahead of time, the high court ruled that a case for sexual harassment could not be made.

What This Means For Employers Employers should never have a company policy that involves humiliation and spanking as a motivational practice. Regardless of anything else, you will be, and probably should be, sued for such a policy.

When the courts evaluate a sexual harassment case, however, they will look at whether or not the plaintiff was targeted because of their sex. If the language or behavior was not targeted at the plaintiff because of their sex, then it will not be found to be sexual harassment. It is the plaintiff's burden to prove that they were harassed or subjected to harassment because of their sex.

The "Friends" case must not be taken as an indication that warning employees of foul language ahead of time will relieve an employer of the responsibility to provide a workplace free of sexual harassment. A crucial part of that opinion is that the sexually charged atmosphere and the discussion of personal sexual experiences actually led to story lines for the show, making such discussions necessary to the business of writing the show. Employers should continue to have and consistently enforce a zero tolerance policy on sexual harassment in the workplace.

The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian & Moody at (559) 248-2360 or toll-free at (888) 322-2573, for individual responses to questions or concerns regarding any given situation.

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Fit-Testing Rule Proposed by Fed/OSHA

OSHA has published proposed rule for a new fit-testing protocol: the Abbreviated Bitrex Qualitative Fit-Testing (ABQLFT) protocol. This proposed rule will add a new fit-test method that has a shorter exercise duration than the current methods. This method will give employers additional flexibility in selecting procedures for conducting fit-testing.

The proposed rule would add the ABQLFT as an alternative to the four existing OSHA-approved qualitative fit-test protocols. The ABQLFT protocol currently listed in the existing OSHA-approved Bitrex fit-test protocol in the Respiratory Protection standard would shorten the duration for each of the seven fit-test exercises from one minute to 15 seconds.

The proposed protocol would apply to employers in general industry, shipyard employment, and the construction industry.

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