DHS Abandons Social Security No-Match Rule

Department of Homeland Security ("DHS") Secretary Janet Napolitano, on Wednesday, July 8, 2009, announced the DHS's intention to rescind the Bush-era Social Security No-Match Letter rule. The No-Match letter rule established a 'safe harbor' procedure that would have established a 90-day window for employers to resolve employment eligibility issues or terminate the employee in question. The No-Match rule has never been implemented due to a court order and legal challenge still pending in the U.S. District Court for the Northern District of California.

In addition to announcing the rescinding of the No-Match rule, Secretary Napolitano also announced the Administration's support for the federal contractor E-Verify rule that is due to be implemented on September 8, 2009. E-Verify is the free internet-based employment eligibility verification system operated by the U.S. Citizenship and Immigration Services ("USCIS") division of the DHS in cooperation with the Social Security Administration. For additional information regarding the federal contractor rule click here.

In commenting on this support for the federal contractor rule, Secretary Napolitano said, "E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce. Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce." This move to implement the federal contractor rule, in addition to the recently announced Immigration and Customs Enforcement I-9 audit initiative, continues to underscore this Administration's efforts to direct immigration law enforcement activities at employers.

If you are an employer who will become subject to the new federal contractor rule, you should begin now to enroll, train, and acquaint yourself with the new federal contractor rule. While the E-Verify system is relatively easy to operate, the ultimate responsibility for compliance with the terms and conditions of use has numerous pitfalls associated with it that employers need to understand. You should consult with competent legal counsel for assistance.

Although the announcement is good news regarding the No-Match rule, employers who will be subject to the new federal contractor rule need to review their internal policies and procedures now to ensure compliance by the rule's effective date, September 8, 2009. And all employers must still be vigilant in completing the Employment Eligibility Verification Form (I-9) to ensure compliance and to avoid possible civil and criminal penalties. Employers should:

- Conduct an annual audit of the I-9 process and the I-9 records to identify and correct errors;

- Conduct annual training of personnel assigned the duty to administer the I-9 process for an employer;

- If enrolled in E-Verify, make sure that the proper posters are prominently displayed or otherwise given to job applicants or new hires;

- Ensure that the current version of the I-9 is used and completed within the established timelines; and

- Consult with competent legal counsel before taking an adverse employment action against any employee related to the I-9.

Written by Ron Guerra, member of Jordan Schrader Ramis's Employment Law practice group. Ron can be reached at 503-598-5540

Copyright 2009 Jordan Schrader Ramis PC. All rights reserved.

No Need to Panic: USCIS Extends Validity of Current I-9

The United States Citizenship and Immigration Services ("USCIS") division of the Department of Homeland Security announced on Friday, June 26, 2009, that it was extending the validity of the current and approved Employment Eligibility Verification Form I-9 ("I-9") beyond its present expiration date of June 30, 2009. The current I-9 was last revised in February 2009 and reflects this revision as Rev. 02/02/09 in the lower right hand corner of the document, and the expiration date of 06/30/09 in the upper right hand corner of the document.

Employers have been required to complete the I-9 for every employee hired since November 6, 1986, on a current and approved USCIS Form I-9. An employer that uses an out-of-date I-9 may be subject to civil penalties ranging from $110 to $1,100. So it is important for employers to check the dates that appear on their I-9 Form to ensure use of the current I-9. Click here to obtain the most current I-9.

In announcing the extension, USCIS also announced that it has requested that the Office of Management and Budget ("OMB") approve the continued use of the current version of the I-9. While this request is pending, the current version of the I-9 will not expire. Once the extension is approved by OMB, the USCIS will update the I-9.

Employers should review their I-9 process to ensure that they are using the current and approved I-9. This is also a good time to train employees administering the I-9 process on the proper compliance procedures.

Written by Ron Guerra, member of Jordan Schrader Ramis's Employment Law practice group. Ron can be reached at 503-598-5540

Copyright 2009 Jordan Schrader Ramis PC. All rights reserved.

Private Becomes Public Through Social Networking Websites

With an advancing technological world, the Internet has reached new heights – especially with the ability to broadcast one’s personal life for others to view through social networking.

Due to the growth of social networking websites such as Facebook, Myspace, and Twitter, privacy is dwindling; with users continually updating personal information and opinions through their accounts; potentially raising concerns with leaders in the workplace.

Friends, family and acquaintances of an employee can see their personal information, photos, and status updates. Managers can too.

The issue at hand is whether or not employees are representing their company positively. Employees have a right to speak their mind, but can inappropriate behavior online be enough for leadership within an organization to be concerned and possibly take action?

According to a survey by Deloitte LLP, 53 percent of employees believe what they post on Facebook and Twitter is none of their boss’ concern; but most employees do realize what they post can damage their company’s reputation.

Five states (California, Colorado, Connecticut, New York and North Dakota) have already weighed in and created statutes aimed at protecting an employee’s lawful off-duty conduct, and similar legislation is pending in Michigan.

Since the flow of information has only increased and the ability to post personal information and opinions via the Internet is easier every day, employee/employer issues may be more problematic in the future. Employers should draft Internet policies that both respect an employee’s right to protected free speech and still inform employees that their posts about the company and coworkers may constitute insubordination or even harassment.

Social networking is a great tool for improving relationships, staying in contact with others, and even developing a business relationship; but for those who take their opinions and statements to another level, it could create some unintended negative consequences in the workplace.

By Brandon Laws and Molly Kelley
Xenium

Have you struggled with your employee dress code?

Here comes the Seussian parade of tank tops and flip flops, knock-offs, cutoffs and crop tops. The sun is shining and temperatures and temptation are on the rise. It’s summer, and dress codes are out the window. Suits, dress slacks and formal wool trousers are being shoved aside in favor of polos, khakis and capris. Soon, stockings will be abandoned in favor of a simple pedicure and peep toes will be peeping.

American business culture has experienced a shift toward a more casual dress code within the last ten years. In a survey from 2000, HR consulting firm William H. Mercer found that 90% of the companies they polled offered a casual dress code, a figure up from 84% in 1998. The majority of these firms allowed casual dress year round, with only one third limiting casual dress to certain days of the week or to the summer.

Most managers and supervisors agree that as temperatures rise, clothes seem to shrink. Whether a company maintains a professional or a casual tone, now is the time to revisit the dress code with managers and employees. Expectations should be clearly communicated in the company handbook or in a stand-alone policy. Managers and supervisors should strive to consistently and fairly enforce the policy, not allowing one employee to sport their flip flops while cracking down on another employee for the same offense.

An enforceable and realistic policy, combined with clear and timely communication with employees, can make all the difference as the summer heats up.

by Molly Kelley
Xenium

STIMULUS BILL REVISITED – Oregon Continuation Coverage

Readers of our February 16 and April 6 eAlerts know that the federal stimulus bill, titled the American Recovery and Reinvestment Act of 2009 (and now known as ARRA), provides a subsidy for continuation coverage in certain cases and opened a window that would permit certain qualified beneficiaries who are not on COBRA coverage to elect such coverage. In our April 6 eAlert, we cautioned that the Oregon legislature and Insurance Division might soon require Oregon-insured health plans to extend the state continuation coverage period and open a similar window for certain qualified beneficiaries not currently on state continuation coverage.

On April 28, 2009, Governor Kulongoski signed House Bill 2433, extending the maximum duration of state continuation coverage and authorizing the Insurance Division to require insurers to provide an additional continuation coverage election window (similar to the one required by ARRA) for plans governed by state law. On April 29, 2009, the Insurance Division issued temporary regulations implementing the new mandate. This eAlert will discuss who is affected by the new law and regulations and what the new law and regulations require.

State Continuation Coverage and ARRA Review

Continuation coverage has been mandated in Oregon since 1981, when Oregon first required Oregon-insured health plans to offer up to six months of continuation coverage. After Congress enacted COBRA in 1986, the Oregon mandate was restricted to health plans not subject to COBRA (generally, church plans and plans of employers who normally employed fewer than 20 employees in the previous calendar year). Thus, if COBRA doesn’t apply to your group health plan (because of the small-employer or church-plan exception), and the plan is insured by a contract issued or delivered in Oregon, state continuation coverage rules apply.

As explained in our previous eAlerts, ARRA permits certain qualified beneficiaries to get continuation coverage by paying 35% of the applicable premium for the coverage.

- The subsidy is available only to qualified beneficiaries who lost or lose coverage due to involuntary termination of employment between 9/1/08 and 12/31/09.

- The subsidy is available for periods of coverage starting after 2/17/09 (March 2009 and later months, in most cases).

- The subsidy is available for up to nine months, but ends when the qualified beneficiary becomes eligible for coverage by Medicare or another group health plan (other than a plan providing only dental or vision coverage or a health FSA or most HRAs) or fails timely to pay his or her reduced share of the applicable premium.

Additionally, ARRA required group health plans to offer a special election window to qualified beneficiaries who lost coverage due to involuntary termination between 9/1/08 and 2/17/09 but who either did not timely elect continuation coverage or who dropped such coverage.

Changes Made by New Oregon Legislation and Regulations

As noted above, Oregon law up to now has required only up to six months of continuation coverage. The new law and regulations extend that period in two respects to permit Oregonians to take full advantage of the ARRA premium subsidy. The new rules are effective immediately and apparently apply even to insurance policies currently in force.

- For coverage lost after February 28, 2009 due to one of the qualifying events recognized by state law, the maximum Oregon continuation period will now be nine months.

- For coverage lost before March 1, 2009 due to involuntary termination, Oregon continuation coverage may last until November 30, 2009. (So a qualified beneficiary who lost coverage on September 30, 2008 due to involuntary termination earlier that month, could be entitled to keep continuation coverage for 14 months.)

It appears that the state will use the IRS’s interpretation of “involuntary termination,” which is discussed in our April 6 eAlert. In the event of a dispute over whether a person was the subject of an involuntary termination, it appears that the federal Center for Medicare and Medicaid Services will provide an appeal procedure.

As also noted above, the Insurance Division requires Oregon health insurers to notify qualified beneficiaries who lost coverage due to involuntary termination between September 1, 2008 and February 17, 2009 but who either did not timely elect continuation coverage or who dropped such coverage that they have a new chance to elect continuation coverage and give those qualified beneficiaries at least 31 days within which to elect such coverage. If elected and paid for (subject to the federal subsidy, if applicable), such coverage will take effect retroactively to March 1, 2009, like the coverage provided pursuant to the ARRA special election window. Unlike COBRA coverage, complicated rules may govern whether family members may make different elections from the former employee.

The rules remain complicated with respect to employees’ registered same-sex domestic partners covered by the plan. Such a partner is eligible for both the extension of state continuation overage and the new special-election window, but is not eligible for the premium subsidy.

Please review the “Employer Action Steps” at the end of our February 16, 2009 eAlert in light of the additional guidance described above. As ever, please feel free to contact us if you have questions or comments about these new rules, or any other employee benefits issues.

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~EMILY Q. SHULTS
~THOMAS I. KRAMER
Copyright 2009
Bullard Smith Jernstedt Wilson

Federal Government Announces that Implementation of E-Verify Requirement for Federal Contractors Delayed Until June 30, 2009

Barran Liebman Electronic Alerts
Electronic AlertSM
Volume 12, Issue 15
April 17, 2009

On April 16, 2009, the federal government issued yet another delay in the implementation of the new E-Verify requirement for federal contractors. The E-Verify requirement is now scheduled to become effective on June 30, 2009.

The details of the new E-Verify requirement were discussed in two previous alerts, here and here. To summarize, current law requires that all employers complete an Employment Eligibility Verification Form (Form I-9) for each newly hired employee. (Don't forget that you must now be using the revised Form I-9 as discussed in another recent alert.) The purpose of the Form I-9 is to verify the employee's identity and employment eligibility. The new rule requires that federal contractors enter the employee's identity and eligibility information into the E-Verify system, an internet-based employment eligibility database. E-Verify must be used for work on all federal contracts awarded after June 30, 2009, that call for a time of performance that exceeds 120 days and that have a value greater than $100,000. Contracts for commercially available items and subcontracts of less than $3,000 are exempt from the requirement.

The new requirement was initially scheduled to go into effect on January 15, 2009. Two delays followed, one pushing the implementation date back to February 20, 2009, and the second to May 21, 2009.

We will keep you posted if additional delays are announced.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice but as employment and labor law announcements. www.barran.com ©Barran Liebman LLP

One-on-One Growth

As the world economy shudders and contracts, businesses across the globe are struggling to come to terms with the changing economic landscape. Financial collapse, layoffs and work shortages have rippled across national borders, dominating our media and our thoughts. Employees and managers alike are worried about the health of their company and wonder about their likelihood of retaining their positions. In an atmosphere ripe with rumor, uncertainty and fear, there is no better time for one-on-one meetings between managers and their employees.

Monthly one-on-one meetings between employees and managers serve to develop not only the employee, their manager and their relationship, but the organization as well. Employees have the opportunity to share their frustrations, challenges and triumphs. Managers have a chance to hear their employee’s concerns and provide feedback and development opportunities. Ironically, current conditions may create increased opportunities for employees. With shrinking staff and resources, many employees are being asked to stretch and grow in directions that wouldn’t previously been possible. Such growth inherently demands more support from the organization.

In today’s climate of tumult and anxiety, the rumor mill is flying. One-on-one meetings also serve as an opportunity for both parties to air and respond to deeper concerns about the health of the industry or company and communicate transparently. Managers owe it to their employees to really listen to their anxieties and answer questions with the truth, as much as possible. There is a great deal we don’t know right now about what the future holds, and it is advisable to honestly communicate both what steps management is taking to stay on top of the company’s economic health as well as the uncertainty we are all feeling. Open and honest communication, even if the news is bad, is more important now than in any previous business climate.

When business is booming, it will be just as important to maintain these meetings, tempting as it may be to lay them aside in favor of the optimistic assumption that things are going smoothly and “no news is good news!” When playing soccer we not only want the rules, we want to know the big picture and most importantly, where the goal line is. Good managers continually remind their employees of overarching individual and organizational goals, providing achievable objectives to strive toward. Through one-on-one meetings, managers have the opportunity to continually support their employees, helping both the employee and company develop and grow.