Even in Legalized States, Employers Can Fire Pot-Smoking Employees

By Stearns Weaver Miller on July 8, 2011 Posted in Employee Handbooks & Policies, Legislation & Regulations

Recently, Congressmen Barney Frank (D-Massachusetts) and Ron Paul (R-Texas) introduced the “Ending Federal Marijuana Prohibition Act of 2011,” which would allow states to determine their own marijuana rules without interference from Washington, DC. If this law passed, states could choose among banning marijuana entirely, making it medically available, decriminalizing its possession or taxing and regulating it like the government does with alcohol.

What does this mean for Florida employers? If Florida ever passed a law legalizing marijuana, employers may want to ban use of the drug by their employees – inside and outside the workplace.

In states like Washington, Oregon and California, where medical marijuana use is currently legal, employers may still choose to prohibit drug use to maintain a drug-free workplace. Washington’s Supreme Court recently announced that the state’s law does not provide employment protection to employees that use marijuana – even medically.

In the case, Jane Roe (a pseudonym) sued her former employer, TeleTech Care Management LLC, for wrongful firing based on her lawful use of the drug. Roe was given authorization to use marijuana for medical purposes in June 2006 to treat chronic migraines. When she was offered a job with TeleTech in October 2006, the job was contingent upon the negative results a drug test. Roe was terminated two weeks later when she failed the company’s drug test.

The Washington Supreme Court found that the statute explicitly stated that employers do not have to accommodate medical marijuana use in the workplace. Even if it did, the Supreme Court said that giving an employment right under the state law to accommodate medical marijuana use would mean requiring employers to engage in illegal activity under federal law.

Employers Take a Hit to the Wallet with the Minimum Wage Increase

By Stearns Weaver Miller on July 7, 2011 Posted in Legislation & Regulations, Wage & Hour/Employee Classification

Florida’s minimum wage has increased to $7.31 per hour. The direct wage for tipped employees increased to $4.29 per hour. The six-cent increase is the result of a successful lawsuit brought by a group of Florida workers against the government claiming that it miscalculated the state minimum wage under the state constitution.

While 6 cents does not seem like a big increase in the minimum wage, the cumulative effects on employers may be hefty, especially considering the litigation costs of not complying with the law. An extra 6 cents per hour spread across an entire workforce can significantly affect a business’s bottom line.

For example, let’s take just 15 workers that work 40 hours per week at minimum wage. That means an increase of $36 per week in wages (15 x 40 x $0.06). Multiply that by 52 weeks and the increase is $1,872 per year in extra costs.

In the event of litigation, that back pay award could be doubled. These “payroll” costs, however, pale in comparison to the attorneys’ fees that employer may have to pay for a lawsuit brought by an unpaid employee.

Employers must post a new minimum wage poster, which can be found at http://www.floridajobs.org/minimumwage/index.htm. This poster requirement is in addition to the federal requirement to post a notice of the federal minimum wage.

Court Says Woman Who Quit Her Job is Entitled to Unemployment Benefits

By Stearns Weaver Miller on July 7, 2011 Posted in Discrimination & Harassment, Employee & Management Counseling, Employee Benefits & Compensation

A Florida appellate court, in Rivera v. Fla. Unemployment Appeals Commission and Pollo Operations, Inc., has directed Florida’s unemployment agency to give unemployment benefits to a woman who voluntarily quit her job. The woman, Nail Rivera, worked at Pollo Tropical restaurant for nine years when she complained that an assistant manager touched her buttocks. Ms. Rivera also complained that the same assistant manager stole money from her cash register, used the word “faggot” and grabbed a male employee’s private parts.

After making the complaints, Ms. Rivera took leave to care for her sick mother. While on leave, a human resources manager, who had investigated the complaints, told Ms. Rivera that her allegation of being touched on the buttocks could not be corroborated. The human resources manager did not advise Ms. Rivera that her theft allegation was still under investigation.

Based on the outcome of the first investigation, Ms. Rivera requested to transfer to another store, which Pollo Tropical denied because there were no openings. Ms. Rivera did not return to work. What Ms. Rivera did not know was that two weeks after she quit, the company completed its theft investigation and fired the assistant manager.

The appeals court said that the woman had two options – (1) quit or (2) return to the Pollo Tropical restaurant where the harassing assistant manager was still employed. Based on these facts, the court thought that the woman had good cause for quitting.

Whether or not there is good cause for an employee to quit a job is a commonly contested issue. In the past, Florida courts have found good cause where employees quit due to fear for their personal safety. The courts use a standard of “reasonableness” as applied to the average man or woman (and not a supersensitive person). This standard is now explicitly included in the new unemployment compensation law.

Southern Hospitality Welcomes E-Verify: Tennessee and Alabama Governors Sign Laws Mandating Use of E-Verify

By Glenn Rissman on June 29, 2011 Posted in Hiring/Termination, Immigration

Tennessee and Alabama joined the growing list of states requiring certain employers within the state to use E-Verify when hiring new workers. The Alabama law broad implications for individuals who are unlawfully present in the United States. Below, we will highlight the aspects of the statutes that impact employers doing business in Tennessee and Alabama.

Alabama

The Alabama law prohibits any employer or business entity, as a condition for the award of any contract, grant, or incentive by the state or any political subdivision of the state, from knowingly hiring or continuing to employ an unauthorized alien. The business entity must attest by sworn affidavit that it shall not knowingly hire or continue to employ an unauthorized alien. The employers receiving such contracts, grants, or awards must also enroll in the federal government’s E-Verify program, and E-Verify every employee that is required to be verified according to the applicable federal rules and regulations. The law also flows down to subcontractors. This section of the statute takes effect on January 1, 2012.

Effective April 1, 2012, every business entity or employer in Alabama must enroll in E-Verify and, in accordance with the federal rules and regulations governing E-Verify, must use E-Verify to verify the employment eligibility of employees. (With the exception of covered federal contractors, E-Verify permits the verification of employees hired after the employer enrolls in E-Verify. Employers may not go back and E-Verify existing employees, unless required to do so as a federal contractor.) Failure to obey the statute could result in the business losing its licenses and permits to operate in Alabama.

The statute prohibits an employer from deducting as a business expense for any state income or business tax purposes in Alabama any wage, compensation, or remuneration paid to an unauthorized alien. An entity that violates the provision is subject to a penalty equal to ten times the business expense deduction claimed.

The law makes it a discriminatory practice for a business entity or employer to fail to hire a job applicant who is a U.S. citizen or an alien authorized to work in the United States or to discharge such an individual while retaining or hiring an employee the business entity or employer knows or reasonably should have known is an unauthorized alien. The statute provides for a civil cause of action in Alabama state court. The aggrieved applicant or employee may recover compensatory relief. The statute provides for prevailing party attorneys’ fees and costs but limits the amount of fees payable to the prevailing party to the amount the losing party paid to his or her attorney.

The statute makes it a Class A misdemeanor to conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in any place in Alabama, if the person knows or recklessly disregards the fact that the alien has come to, has entered, or remains in the United States in violation of federal law. Although not directly implicating the employment of unauthorized aliens, it is foreseeable that state or federal authorities could use the threat of this provision (or similar federal statutes) to bully or strong arm employers during on-site inspections of the workplace. Employers should therefore be aware of the provision.

Tennessee

The new Tennessee statute is called the Tennessee Lawful Employment Act. The statute seeks to ensure that both employees and non-employees are authorized to work in the United States. A non-employee is defined as any individual, other than an employee, paid directly by the employer in exchange for the individual’s labor or services.

In the case of a non-employee, before the non-employee provides labor or services, the employer must request and maintain a copy of one of the following documents:

- A valid Tennessee driver’s license or photo identification license issued by the Tennessee Department of Safety;

- A valid driver license or photo identification license issued by another state whose issuance requirements are at least as strict as those in Tennessee. Tennessee is supposed to develop a list of states whose licenses/photo identification are acceptable;

- An official U.S. birth certificate;

- A U.S. issued birth certificate;

- A valid, unexpired U.S. passport;

- A U.S. Certificate of Birth Abroad;

- A Certificate of Citizenship

- A Report of Birth Abroad of a Citizen of the U.S.;

- A Certificate of Naturalization;

- A U.S. citizen identification card; or

- Valid alien registration documentation or other proof of current immigration registration recognized by the U.S. Department of Homeland Security that contains the individual’s complete legal name and current alien admission number or alien file number. (Although not clear, it would seem that a permanent resident card, Employment Authorization Document, or I-94 card authorizing the alien for employment with the specific employer would fall within this description.

In the case of employees, the employer must request and retain one of the above documents prior to the employee providing labor or services to the employer. In the alternative, the employer can enroll in E-Verify, verify the work authorization of the hired employee using E-Verify, and maintain a record of the results from E-Verify for the employee.

The employer must maintain the required documentation for a period of time consistent with the Form I-9’s requirements – three years after the date of hire (or three years after the non-employee provides labor or services) or one year after termination, whichever is later.

The statute is phased-in based on the size of the employer. For employers of 500 or more employees, the statute is effective January 1, 2012. Private employers with 200 to 499 employees must comply by July 1, 2012. For employers of six to 199 employees, the law takes effect on January 1, 2013.

E-Verify In Other States

Numerous other states have mandated the use of E-Verify, although in many, E-Verify is limited to state agencies or entities contracting with the state. Among those states that have mandated use of E-Verify in some form: Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Rhode Island, South Carolina, Utah, and Virginia.

Nine Questions HR Directors Ask About Form I-9

By Glenn Rissman on June 29, 2011 Posted in Hiring/Termination, Immigration

For the second time this year, the USCIS has published an updated version of its Form I-9 Handbook for Employers. The most recent version of the Handbook can be accessed through the USCIS’s I-9 Central HERE (Click on the picture of the I-9 Handbook for employers in the right hand column).

Earlier in June, the USCIS also posted a series of Questions and Answers regarding Form I-9. You can access the complete Q&A HERE:

Some of the more interesting pieces of advice offered in the recent release include:

Do volunteers at your non-profit need to complete the Form I-9? Employers do not need to complete a Form I-9 for volunteers. However, if the volunteer receives any remuneration, such as housing or tickets, the volunteer is deemed an employee and must complete Form I-9. (Do not forget about the FLSA implications when it comes to “volunteers.”)

Do I have to complete a Form I-9 for an overseas employee going through training in the U.S.? If the employer pays for training in the U.S. that is required for the job, the employer should complete Form I-9 for the employee, even if the employee will work for the employer overseas after the training is completed.

Must the employee include a physical address in Section 1 of the Form I-9? The employee must enter a physical address in Section 1 of the Form I-9; P.O. boxes are not acceptable. The employee can enter a physical description of the location if the residence does not have a physical address, such as “18 miles southwest of the Main Street post office near the water tower.”

Can we require an applicant to complete the Form I-9 prior to extending a job offer? The USCIS has adopted the position that an employer may not require an employee to complete Form I-9 before the employee has accepted the job offer. The USCIS position is likely tied to E-Verify rules prohibiting employers from using E-Verify as a pre-screening tool.

Can employers accept unsigned Passports and Social Security Cards as proof of work authorization? Employers may accept an unsigned passport or Social Security card for I-9 purposes provided the passport/Social Security card appears to be genuine on its face and relates to the employee presenting the passport/Social Security card.

Is a laminated Social Security card an acceptable List C document? A laminated Social Security card is a valid List C document unless the card states on the back, “Not Valid if Laminated.” Metal or plastic reproductions of Social Security cards are not acceptable for I-9 purposes.

An employee submitted a Social Security card annotated “For Social Security and Tax Purposes Only.” Is such a Social Security proof of work authorization for I-9 purposes? Such a Social Security card is valid proof of the employee’s authorization to work.

How does the USCIS recommend correcting a mistake on a Form I-9 after a conducting a self audit? The USCIS recommends that the employer draw a line through the inaccurate information, write the correct information on the I-9 Form, and initial and date the correction. USCIS also recommends that the employer make a note in the I-9 file that it completed a self audit on that date.

We discovered that we used an outdated version of Form I-9. How should we correct the error? If an employer realizes that it used an outdated version of Form I-9 at the time of an employee’s hire, the employer should complete a new Form I-9, using the current version, and attach the new Form I-9 to the previously completed Form I-9. The Q&A provides no guidance if the error is discovered after the employee has left the employer’s employment and can no longer be asked to complete the new Form I-9.