Overtime Update: Will the Texas Decision Invalidating the DOL Overtime Rule Survive and What Should Employers Do Now?

By Kenneth M. Bello

Now that a federal judge has issued a preliminary injunction staying implementation of the new DOL regulations revising salary thresholds for determining application of the white collar minimum wage and overtime pay exemptions, otherwise slated to go into effect on December 1st, what happens next, and how quickly will that occur?  Here are the possibilities.

  • An interlocutory appeal to the 5th Circuit Court of Appeals. How that comes out is anyone’s guess, but the case is vulnerable in its analysis, as detailed below.
  • Congressional Action that renders the decision academic. On September 28, 2016, the House of Representatives passed H.R. 6094, titled Regulatory Relief for Small Business, Schools, and Nonprofits ActThe bill would have changed the effective date of the revised overtime regulations from December 1, 2016 until June 1, 2017.  With a Republican majority in both the House and Senate, there is a very real possibility that some form of law will be filed and passed in 2017.  The question of course is what will that bill look like – for examples, will it exempt “small business”, and will it change the minimum salary amounts and/or remove automatic indexing?

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EEOC Issues Resource Document on Leave of Absences under the ADA

On May 9, the U.S. Equal Employment Opportunity Commission issued a new Resource Document that advocates the use employer-provided leaves of absence as accommodation for an employee’s disability.  According to the press release announcing the publication of the document, titled Employer-Provided Leave and the Americans with Disabilities Act, this new resource attempts to address the “troubling trend” that is the “prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation.” Claiming that the Resource Document creates no new agency policy, the EEOC describes the document as simply “one in a series of EEOC Resource Documents” that “consolidates existing guidance on ADA and leave into one place.”

The Resource Document covers six main topics, giving specific examples for each. These topics, and one example provided for each, are:

  1. Equal Access to Leave Under an Employer’s Leave Policy. Here, the EEOC simply asserts that “employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees.” Given that this has been the law of the land for many years, it is likely that the EEOC included this statement in its Resource Document to demonstrate that it is not creating new agency policy, but simply consolidating existing guidance into one place.

Example: An employer permits employees to use paid annual leave for any purpose and does not require that they explain how they intend to use it. An employee with a disability requests one day of annual leave and mentions to her supervisor that she is using it to have repairs made to her wheelchair. Even though he has never denied other employees annual leave based on their reason for using it, the supervisor responds, “That’s what sick leave is for,” and requires her to designate the time off as sick leave. This violates the ADA, since the employer has denied the employee’s use of annual leave due to her disability.

  1. Granting Leave as a Reasonable Accommodation. The EEOC describes its policy as requiring employers “to change the way things are customarily done” (emphasis in the original). To that end, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation, when the employer does not offer leave as an employee benefit, when the employee is not eligible for leave under the employer’s policy, or when the employee has exhausted his or her available leave. The practical effect of this principle is to extend FMLA leave, or to provide FMLA leave to employees who are not eligible for such leave.

Example: An employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment for a disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship.

  1. Leave and the Interactive Process Generally. According to the Resource Document, “[w]hen an employee requests leave, or additional leave, for a medical condition, the employer must treat the request as one for a reasonable accommodation under the ADA” (emphasis added). If the request for leave cannot be addressed under an employer’s existing leave program, the FMLA or similar state or local law, or the state workers’ compensation program, the employer must engage in the “interactive process,” to obtain relevant information to determine whether the employee has a condition that is a disability under the ADA, and to determine the feasibility of providing the leave as a reasonable accommodation.

ExampleAn employee with a disability is granted three months of leave by an employer. Near the end of the three month leave, the employee requests an additional 30 days of leave. In this situation, the employer can request information from the employee or the employee’s health care provider about the need for the 30 additional days and the likelihood that the employee will be able to return to work, with or without reasonable accommodation, if the extension is granted.

  1. Maximum Leave Policies. Many employers have maximum leave policies that provide for automatic or administrative termination for all employees who exceed the maximum amount of leave. The Resource Document makes clear that although such policies are not per se unlawful, employers must consider modifying maximum leave policies to grant leave beyond the maximum allowed as a reasonable accommodation for disability-related absences. In other words, employers must make a case-by-case assessment of an employee’s situation and need for leave before terminating the employee in accordance with a maximum leave policy.

Example: An employer is not covered by the FMLA, and its leave policy specifies that an employee is entitled to only four days of unscheduled leave per year. An employee with a disability informs her employer that her disability may cause periodic unplanned absences and that those absences might exceed four days a year. The employee has requested a reasonable accommodation, and the employer should engage with the employee in an interactive process to determine if her disability requires intermittent absences, the likely frequency of the unplanned absences, and if granting an exception to the unplanned absence policy would cause undue hardship.

  1. Return to Work and Reasonable Accommodation (Including Reassignment). The EEOC unequivocally states that an employer “will violate the ADA if it requires an employee with a disability to have no medical restrictions” before returning to work. In other words, a “100% healed or recovered” policy is unlawful if the employee can perform the essential functions of the job with or without reasonable accommodation. The EEOC also takes the position that if an employee cannot perform the essential functions of his or her job even with a reasonable accommodation, the employer must place the employee in a vacant position for which he or she is qualified without requiring the employee to compete with other applicants for the position.

Example: An employee with a disability requests and is granted two months of medical leave for her disability. Three days after returning to work she requests as reasonable accommodations for her disability an ergonomic chair, adjusted lighting in her office, and a part-time schedule for eight days. In response, the company requires the employee to continue on leave and informs her that she cannot return to work until she is able to work full-time with no restrictions or accommodations. The employer may not prohibit the employee from returning to work solely because she needs reasonable accommodations (though the employer may deny the requested accommodations if they cause an undue hardship). If the employee requires reasonable accommodations to enable her to perform the essential functions of her job and the accommodations requested (or effective alternatives) do not cause an undue hardship, the employer’s requirement violates the ADA.

  1. Undue Hardship. The EEOC reiterates that employers are not required to provide reasonable accommodation if to do so would cause “undue hardship.” Importantly, the EEOC clearly states that “indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship.” Otherwise, however, the EEOC offers no further clarity to what constitutes “undue hardship” beyond what has already been provided in previous guidance. As always, factors to be considered include the amount and/or length of leave required, the frequency of leave, the predictability of intermittent leave, and the impact on the employer’s operations and its ability to serve customers and clients in a timely manner.

Example: An employee has exhausted both his FMLA leave and the additional eight weeks of leave available under the employer’s leave program, but requires another four weeks of leave due to his disability. In determining whether an undue hardship exists, the employer may consider the impact of the 20 weeks of leave already granted and the additional impact on the employer’s operations in granting four more weeks of leave.

The concept of leave as a reasonable accommodation is not new. For many years, the Equal Employment Opportunity Commission has taken the position that a leave of absence is a form of reasonable accommodation under the Americans with Disabilities act if necessitated by an employee’s disability, including leave that exceeds a company’s normal leave allowance. Nevertheless, and despite the fact that the EEOC claims that the document creates no new agency policy, employers are on notice that the EEOC will scrutinize all refusals to grant an employee a leave of absence as a reasonable accommodation. Beware.

Defend Trade Secrets Act Signed Into Law

President Obama signed the “Defend Trade Secrets Act of 2016” into law on May 11th.  The Act amends the Economic Espionage Act of 1996 to provide a federal private right of action for trade secret misappropriation and theft.  Remedies include actual damages, injunctive relief, and exemplary damages and attorneys’ fees for willful and malicious misappropriation. The Act does not preempt state law, meaning that plaintiffs will now have the option of proceeding under either state or federal law when faced with a threat to trade secrets.

The Act also provides immunity for certain disclosures made to government officials or attorneys.  Specifically, the Act provides that an individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (1) in confidence to a government official or an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other filing in a lawsuit or other proceeding, if such filing is made under seal.  Likewise, an employee who files a retaliation lawsuit for reporting a suspected violation of law may disclose the trade secret to his or her attorney and may use the trade secret information in a court proceeding if the individual files any document containing trade secret information under seal and does not disclose the trade secret except pursuant to court order.

Importantly, effective May 11, 2016, the Act requires employers to provide notice of this immunity in any contract or agreement with an employee that governs the use of trade secrets or other confidential information.  Employers who fail to provide the required notification cannot recover attorneys’ fees or exemplary damages under the Act.  The notice of immunity can be done in one of two ways.  One way is to incorporate fully the notice of immunity into confidentiality agreements.  The second way is to put the notice of immunity in the company’s policy for reporting a suspected violation of law, and then to cross-reference that policy in confidentiality agreements.  For simplicity, we recommend that employers reproduce the statutory language in the notice of immunity.

Update: Comment Period Extended for Proposed Rule for Federal Contractor Paid Sick Leave

By: Alexandra (Sasha) Thaler

The Department of Labor has extended the public comment period on its Proposed Rule for Federal Contractor Paid Sick Leave, based on public comments received and the interest that has been expressed in this matter.  The comment period was due to close on March 28; comments may now be submitted through April 12, 2016.

See our earlier post for more detail on the Proposed Rule.

Proposed Rule Issued for Federal Contractor Paid Sick Leave

By Alexandra (Sasha) Thaler

The Department of Labor (DOL) announced last Thursday that it has posted for comment its Proposed Rule implementing President Obama’s September 7, 2015 Executive Order (EO 13706), which requires certain federal contractors and their subcontractors to provide employees with up to 7 days (56 hours) of paid sick leave annually.  The rule affects contractors entering into new contracts on or after January 1, 2017 that are covered by the Service Contract Act, the Davis-Bacon Act, or the Fair Labor Standards Act, concessions contracts, and service contracts in connection with federal property or lands. These contractors will need to include a new contract clause in applicable solicitations and government contracts, included as Appendix A to the Proposed Rule.

Under the new rule, employees must be allowed to earn paid sick time at a rate of 1 hour for every 30 hours worked. This mirrors many recently enacted state and municipal sick time laws across the country. However, accruals may not be capped at less than 56 hours, an amount that is higher than required by some jurisdictions, including Massachusetts and California.

The Proposed Rule provides that sick time must be made available for absences due to the employee’s own physical or mental illness, injury or medical condition, and for obtaining diagnosis, care or preventative treatment for the employee, as well as for caring for family members for the same reasons, and for absences relating to domestic violence, sexual assault or stalking (including for medical, legal and other needs that may arise in those circumstances). In a departure from some existing state and local laws, however, the definition of a family member is quite broad, and includes not only children, parents, spouses and domestic partners, but also “any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”

The new federal contractor requirement also has some of the same aspects of other sick time laws that are most likely to cause problems in administration, such as allowing employees to use sick time in 1-hour increments, requiring carryover of unused hours from year to year, requiring reinstatement of unused time following interruptions in service of up to 12 months, and requiring sick time to be granted even if the employee provides little or no prior notice.

Due to the rash of activity in this area in recent years, many employers have already implemented paid sick time policies, while others have had comprehensive PTO policies for some time. The Proposed Rule permits existing sick time, PTO or other time off policies to substitute for the new paid sick time requirement so long as those policies meet the minimum standards of the new rule. Employers that plan to rely on existing policies to meet the new requirements should consult with experienced employment counsel to assess whether they fully meet the new requirements. The good news is that employers will have until January 1, 2017 to implement compliant policies. The Wage and Hour division invites comments on the proposed rule until March 28, 2016.

Massachusetts: An Act to Establish Pay Equity

On January 28, the Massachusetts Senate passed S. 2119, titled “An Act to Establish Pay Equity” (the “Proposed Law”).   Touted by one of the Act’s co-sponsors as a way to “further close the wage gap between male and female workers in the Commonwealth,” the Proposed Law is claimed to ensure equal pay for comparable work by “establishing pay transparency and requiring fairness in hiring practices.” If enacted, the law virtually assures that there will be new litigation battles fought as employers defend against single plaintiff, class and collective actions asserting unlawful pay disparity. Beyond expensive litigation, another unfortunate consequence of the Proposed Law may be that many employers will assess and reassess whether it makes sense to continue to do business in Massachusetts.

Key provisions of the Proposed Law include:
•    Makes unlawful any disparity in the payment of wages (including benefits and other compensation) between different genders for “comparable work”, which is defined as work that is “substantially similar” in that it requires “substantially similar” skill, effort and responsibility, and is performed under “similar” working conditions. “Working conditions” is defined to include the “circumstances customarily taken into consideration in setting salary or wages, [such as] reasonable shift differentials, physical surroundings and hazards encountered by employees performing a job.” The Proposed Law provides no definition or further guidance as to what is meant by “substantially similar,” meaning that any such determination could only be made following an intensive and individualized factually inquiry in the context of litigated cases. Because of this, these cases will be extraordinarily expensive to defend.

•    Provides that employers can pay wages (including benefits and other compensation) that are different for comparable work if based upon (1) a “bona fide” seniority system; (2) a “bona fide” merit system[1]; (3) a “bona fide” system that measures quantity or quality of production or sales; (4) the geographic location in which a job is performed; (5) education, training, or experience, to the extent such factors are “reasonably related” to the particular job in question and “consistent with business necessity;” or (6) travel, if travel is a regular and necessary condition of the job. While some of these factors can be objectively measured (e.g., sales production), none of these factors permit differentials based on real workplace differentials influenced by qualitative performance and market differentials. In an economy that is driven by industries such as biotechnology (pharma and device), high technology, education and health care, many of these “exceptions” will have no practical application. As with the definition of comparable work, the one certainty is that there will be time consuming and expensive litigation over what these terms actually mean and their application to specific circumstances.

•    The Proposed Law requires pay equity for all compensation and benefits – it expressly provides that it covers “wages, including benefits or other compensation. This presumably includes bonuses, stock options or other equity awards, or any other economic benefit. This will have enormous impact for employers that attract new employees and/or reward top performers with periodic equity awards.

•    Provides that an aggrieved employee can bring a lawsuit, whether on his or her own behalf or on behalf of others (i.e, as a class or collective action). If the individual or group prevails, the employer is automatically liable for twice the lost wages (framed as liquidated damages), benefits and other compensation (with lost wages, benefits and other compensation calculated as the difference between what was paid and what should have been paid), and attorneys’ fees. A prevailing employer gets nothing.

•    There is a three year statute of limitations.

While The Attorney General also may also bring suit on behalf of one or more employees, it is far more likely that the litigation will be brought by the industry of plaintiffs’ attorneys who stand to be paid their attorneys’ fees, either by settlement or if they prevail .
An employer may defend against a claim if, within three years prior to the commencement of such claim, it completed a self-evaluation of its pay practices (which practices include wages, benefits, and other compensation) and can demonstrate that reasonable progress has been made towards eliminating any gender-based compensation differentials that may have been found. Amazingly, however, an employer that conducts a self-audit and discovers that one or more employees are overpaid in relation to other employees cannot reduce employees’ wages, benefits or other compensation to come into compliance.

In addition, if the Proposed Law is enacted as drafted, employers will not be allowed to:

•    Prohibit employees from discussing their own or other employees’ wages (this is already protected by federal law, specifically the National Labor Relations Act and, for federal contractors and subcontractors, Executive Order 13665).
•    Screen job applicants based on their wage history, or requesting or requiring an applicant, as a condition of being interviewed or continuing to be considered for an offer, disclose prior wage history. As with all other aspects of the Proposed Law, “wages” includes benefits and other compensation. This will make it very difficult to determine how to make a competitive offer to an individual.
•    Seek the compensation history of any prospective employee from any current or former employer, unless an offer of employment has been made and the prospective employee so authorizes, in writing.
•    Retaliate in any way against an employee exercising his or her rights under the Proposed Law.

Many employers obviously are concerned about the impact that this Proposed Law will have on their businesses. By way of example only, employers are concerned about the ability to attract talent at market rates that may be different than individuals already employed, as well as the myriad other circumstances where the Proposed Law may impede business decisions and expose them to costly and uncertain litigation. As the Proposed Law has not been enacted, for those employers who are concerned about it, now would be the time to contact industry associations, legislative representatives and any others with political involvement to raise their concerns about the negative consequences of this legislation as presently drafted.
[1] A published Federal Jury Instructions provides that in order to establish a bona fide merit system, an employer must demonstrate a “structured process under which employees are systematically evaluated according to established standards that are designed to determine the relative merits of their performance”. Such a definition defies the reality that an individual’s performance is measured in multiple ways, many of which are not easily measured (e.g., enthusiasm, commitment to a job, level of effort, etc.).

EEOC Publishes Proposed Enforcement Guidance on Retaliation

By Emma L. Melton

The U.S. Equal Employment Opportunity Commission (EEOC) has released proposed Enforcement Guidance on Retaliation and Related Issues.  This proposed guidance provides insight as to how the EEOC interprets applicable law and hints at the areas that may receive increased focus going forward.

Existing federal employment laws prohibit employers from retaliating against applicants or employees for exercising rights protected by fair employment practice laws. This protected activity includes an employee’s opposition to a practice believed to be unlawful, such as complaining about discrimination or refusing an order believed to be discriminatory. It also includes participation in an employment discrimination proceeding, such as submitting a complaint, filing a charge of discrimination, or participating in an investigation of discrimination.

Retaliation claims may be brought under every law that the EEOC enforces, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, and others. The percentage of retaliation charges has increased significantly in recent years, constituting about 42% of charges filed with the EEOC in 2014, making it the most frequently alleged violation by complainants. Importantly, retaliation may be found even when the underlying claim of discrimination is ruled to be without merit. For example, if an employee files a complaint erroneously alleging sexual harassment in the workplace, but is fired because she filed the complaint, she could be successful in a claim of retaliation, despite the fact that no harassment occurred.

The proposed guidance does little to change current law.  It does, however, update prior guidance published in 1998.  After defining retaliation and outlining the three elements of a retaliation claim, the guidance provides an updated overview of relevant case law. The guidance also expands on the examples of retaliation given in the 1998 publication, and provides examples of both lawful employer action and unlawful retaliation. In addition to updating these sections, the proposed guidance includes a new section with five “best practices” for employers to implement to minimize the likelihood of retaliation violations.  These best practices are:

  • Designing and implementing written employer policies that include clear examples of both legal and illegal behavior and a reporting mechanism for potential or perceived retaliation;
  • Providing training on anti-retaliation policies for all employees;
  • Providing support for managers and supervisors to improve responses to complaints of retaliation;
  • Implementing a follow-up procedure to check in with employees after a complaint has been filed; and
  • Designating an individual to review proposed adverse employment decisions before action is taken.

The EEOC is requesting public input during the 30-day comment period ending February 24.  The proposed guidance may be viewed here.

EEOC Proposes Changes to EEO-1 Reporting to Include Pay Data

By Martha J. Zackin

Today, the U.S. Equal Employment Opportunity Commission (EEOC) issued a proposed revision to the Employer Information Report (EEO-1) to include the annual collection and reporting of pay data.  Currently, federal law requires federal contractors with 50 or more employees, and all other employers with 100 or more employees, to file an annual EEO-1 report, which reports employees’ ethnicity, race, and sex by job category.  The revised EEO-1 would require all employers with 100 or more employees to continue to collect and report this demographic data and, in addition, pay data.  Federal contractors with between 50 and 99 employees would not be required to report pay data, but would continue to report ethnicity, race, and sex.

According to the press release published announcing this new requirement, the data collected will be used by both the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) “to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.”  In addition, as described in an EEOC- published “Questions and Answer” document, the data will be aggregated and published, to “help employers evaluate their own pay practices to prevent pay discrimination in their workplaces.”

A “Small Business Fact Sheet” provides a detailed description of the data that would be collected if the proposal becomes law.  In summary, using W-2 wage data employers would tally and report the number of employees within each EEO-1 job category whose W-2 pay for twelve months was in one of twelve “pay bands.”  These pay bands, which would track the twelve pay bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey, are:

    1. $19,239 and under;
    2. $19,240 – $24,439;
    3. $24,440 – $30,679;
    4. $30,680 – $38,999;
    5. $39,000 – $49,919;
    6. $49,920 – $62,919;
    7. $62,920 – $80,079;
    8. $80,080 – $101,919;
    9. $101,920 – $128,959;
    10. $128,960 – $163,799;
    11. $163,800 – $207,999; and
    12. $208,000 and over.

In addition to reporting (by ethnicity, race and sex) the number of employees whose total W-2 pay fell into each pay band, employers would also tally and report the total number of hours worked by the employees counted in each pay band over the prior twelve months. This would accounts for part-time or partial-year employment.

Members of the public may submit comments through April 1, 2016.  Barring revision or withdrawal of the proposal, employers will be required to comply with the new EEO-1 obligations by submit ting pay data as of the September 30, 2017 EEO-1 filing deadline.

The EEOC also The proposed revised EEO-1 may be viewed here.

Joint Employment: DOL Issues Adminstrator’s Interpretation

By Martha J. Zackin

The legal concept of joint employment has been around for many years, first gaining national prominence in 1996, after a federal appeals court found Microsoft to be a co-employer of thousands of workers classified either as “contractors” or “temporary employees” retained through a staffing company.  The case, Vizcaino v. Microsoft,, 97 F.3d 1187 (9th Cir. 1996), ultimately settled for $97 million dollars.

In 2015 the National Labor Relations Board weighed in, with Browning-Ferris Industries of California, Inc., 362 NLRB No. 186.  As described in a press release describing the BFI decision, the NLRB will now find two or more entities to be joint employers of a single workforce if “(1) they are both employers within the meaning of the common law;  and (2) they share or codetermine those matters governing the essential terms and conditions of employment.”  In evaluating joint employment status, the NLRB considers whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, such as a staffing company.  Remarkably, with BFI, the NLRB will find joint employment even where a company has not actually exercised control, but has merely “reserved the authority to do so.”

 

Multiple federal courts also joined the discussion in during 2015, with both the Third and the Fourth Circuit Courts of Appeals finding staffing buyers to be joint employers with the staffing companies whose workers performed the services.   Although the tests applied by the courts were slightly different, the courts in both Butler v. Drive Automotive, 793 F.3d 404 (4th Circuit 2015) and Faush v. Tuesday Morning, Inc., (3rd Circuit 2015) focused on the staffing buyers’ right to control the manner and means by which the work was performed.

Today, the Department of Labor offered its view on joint employment, issuing Administrator’s Interpretation No.  2016-1.  Not surprisingly, the DOL advocates an expansive definition of joint employment “to ensure that workers receive the protections to which they are entitled.”  Within the Administrator’s Interpretation, the DOL introduces the concepts of “horizontal joint employment” and “vertical joint employment.”  According to the DOL, both “horizontal” and “vertical” joint employment exist when “an employee is employed by two (or more) employers and the employers are responsible, both individually and jointly, for that employee under the law.”  With “horizontal” joint employment, an employee may be employed by two companies that share operations.  The “vertical” joint employment relationship is akin to the traditional staffing relationship, where a business obtains workers through an arrangement with an intermediary employee.

With the Administrator’s Interpretation, the DOL also published a blog entry, along with FAQ’s graphic illustrations of “horizontal joint employment” and “vertical joint employment.”

A broad standard of joint employment will have a significant impact on many businesses.   For example, entities deemed to be joint employers may find themselves liable for actions taken by their contractors and suppliers, if those contractors and suppliers are deemed to be joint employers.  Moreover, under the expansive definition described above, non-unionized employers found to be joint employers of unionized entities may find themselves subject to collective bargaining obligations.  Small businesses and franchise owners may be responsible for medical care under the Affordable Care Act, among other laws, if their employees are grouped together and counted with the employees of their co-employers.

Stay tuned for further developments.

Form I-9 Compliance: New Guidance Issued

By Martha J. Zackin

The Immigration and Nationality Act (INA) requires employers to verify the work authorization of employees using the Form I-9.   Some employers choose to conduct periodic internal audits of their Forms I-9, to ensure compliance.  Concerned that improperly conducted internal audits could “create barriers to employment for work-authorized individuals,” the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) and the Department of Justice’s Civil Rights Division together published new Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.

The guidance, developed by DOJ and ICE with input from the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, the U.S. Citizenship and Immigration Services, the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission, seeks to provide employers with, among other things:

  •  information regarding the scope and  purpose of audits;
  • considerations before conducting internal audits;
  • details regarding how to correct errors, omissions or other deficiencies found on Forms I-9 and how to cure deficiencies related to E-Verify queries; and
  • guidance regarding the anti-discrimination mandate.

For further information, the DOJ’s press release announcing the guidance may be found here.

Nothing in the law or this guidance requires employers to self-audit I-9 compliance.  Those employers who choose to do so, however, should look to the guidance to help structure and implement self-audits in a manner consistent with the employer sanctions and anti-discrimination provisions of the INA.