Ensuring Compliance with I-9 Regulations

Employers face tough challenges when trying to comply with the prohibitions on employing unauthorized workers, while at the same time ensuring they do not discriminate against employees during the I-9 process by engaging in document abuse. The prohibitions against these practices are found in the Immigration Reform and Control Act, but are overseen by different agencies. ICE, an agency under the Department of Homeland Security, is responsible for overseeing and investigating the employment of unauthorized workers, while the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), an agency within the Department of Justice, investigates claims of document abuse.
Recently, two employers have been subjected to civil fines and back pay penalties by the OSC for engaging in document abuse. In October, an OSC investigation concluded that a healthcare employer had required both non-U.S. citizens and naturalized U.S. citizens to present more documentation than required by the I-9 process, while allowing native-born U.S. citizens to select their documents when completing the I-9s. In the settlement agreement, this employer agreed to pay $257,000 in civil penalties in addition to $1,000 in back wages. This employer was also required to review its I-9 procedures, train its recruitment personnel, and provide reports to the OSC for a period of three years. The following month, an OSC investigation resulted in fines against another employer after the OSC concluded that this employer had illegally required employees who had presented a “green card” for I-9 purposes to produce a new card upon its expiration. This employer agreed to a civil penalty of $10,200, to conduct I-9 training, and to provide reports to the OSC for a period of one year.
In the other arena, ICE recently reached a $1 million dollar settlement with a retail employer after an I-9 audit revealed several technology-related deficiencies in the company’s electronic I-9 verification system. Although ICE did not conclude that the company had knowingly hired unauthorized workers, and the stores had taken proactive steps to ensure they were not employing unauthorized individuals, the large penalty served the purpose of providing a warning to other companies. As related by an ICE special agent, "employers are responsible not only for the people they hire but also for the internal systems they choose to utilize to manage their employment process and those systems must result in effective compliance." 
Thus, employers must take care to ensure compliance with I-9 laws on both ends. Employers should make certain they have sound I-9 policies, provide training to the relevant employees, engage in self-audits, and, if utilizing an electronic I-9 system, they should take care when selecting or developing the system.

Social Media and the Workplace

Employers are reminded to be cautious when disciplining employees over on-line comments made on sites such as “Facebook” during their personal time. The National Labor Relations Board (“NLRB”) recently filed a complaint against a healthcare employer after the company terminated an employee who made derogatory remarks about her supervisor on Facebook. While the company denies the termination was based on the comments posted on the site, the NLRB claims that the posting constitutes “protected concerted activity” and further finds that the employer’s internet policy is overly restrictive. While the NLRB’s complaint is not yet a final decision, employers should review their social media policies to ensure that any restrictions on communications are tailored to legitimate areas of company concern.

Hospital Did Not Have Duty To Accommodate Medical Resident

A federal appellate court held recently that a hospital had no duty to accommodate a medical resident who was unable to perform his job. The particular medical resident had prescribed patients improper medication, misdiagnosed patients, and was unable to handle his workload. The hospital initially attempted to assist the medical resident by, among other things, offering him a reduced patient load and providing additional training and mentoring. Despite these efforts, the medical resident remained unable to perform. In response to the hospital’s concern over his performance, the medical resident provided evidence that he had been diagnosed with potential Attention Deficit Disorder and that his memory was below average. 

As such, the medical resident requested that he be accommodated by being assigned even fewer patients, given additional time to get up to speed on his cases when he arrived on duty, and be given a “more compassionate” environment. The hospital refused, and instead terminated him. In evaluating the subsequent case brought by the medical resident under the Americans With Disabilities Act (“ADA”), the court found that he had sufficiently shown he was regarded as disabled. However, noting that “patient safety and [medical] resident morale would be compromised since others would be required to assume a greater role in managing those cases that [the medical resident] would be routinely expected to manage, diluting or delaying their routine responsibilities,” the court found that the medical resident was unable to establish that he could perform the essential functions of the job, with or without reasonable accommodation. 

Moreover, the court agreed with the hospital that the medical resident’s requested accommodation was “not only unreasonable but in direct conflict with the goal of residency education – to build memory strength about patient care disease presentations in order to develop the clinical judgment essential to being a physician.”

ADA Amendments Provide Easier Avenue to Prove “Disability.” 

While the Americans with Disabilities Act Amendments Act (ADAAA) went into effect in January of 2009, courts are just beginning to hear cases that fall under its purview. This is significant because the ADAAA provides that the definition of disability “shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the ADA.]” In addition, the ADAAA makes clear that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Recently, in a case decided under the ADAAA, a federal district court ruled that cancer in remission constitutes a disability under the law, regardless of whether it currently limits a major life activity. 

The employee in this case worked as a service technician supplying patients with home medical devices, and was diagnosed with Stage III renal carcinoma in November 2007. Shortly thereafter, the employee took a leave from work to undergo surgery and recovery, and returned to work in January 2008 with no restrictions on his ability to work. In January of 2009, the employee’s supervisor informed him that all service technicians were required to work mandatory overtime of up to 70 hours per week due to a new account. Although the employee’s cancer was in remission, he provided his employer with a doctor’s note indicating that he could not work more than forty hours per week. While the company ultimately agreed to limit his hours, it required him to work out of an office that required two to three extra hours of travel time per day. 

The employee claimed that his employer had essentially terminated him by making this request, and he filed suit under the ADAAA, claiming that his employer had regarded him as disabled and had fired him without offering a reasonable accommodation. Denying the employer’s request for summary judgment, the court noted that the employee had presented enough evidence to proceed to trial. As demonstrated by this decision, employees will be able to establish the existence of a “disability” in greater numbers. As such, the critical inquiry will often become the issue of whether the employer provided a reasonable accommodation.