Image via Wikipedia

As of June 23, 2011, all cities, all counties, and private employers with at lest 25 employees in North Carolina are required to use the federal government’s E-Verify program to verify the work authorization of newly hired employees.
Public universities, community colleges and other North Carolina state agencies are already required to use E-Verify. The new statute applies to municipalities, counties and employers that employ 25 or more employees in North Carolina.

Timeline for employers to register and participate in E-Verify:

• October 1, 2011:  municipalities and counties in North Carolina.
• October 1 2012: Employers who employ 500 or more employees in North Carolina.
• January 1, 2013: Employers that employ 100 or more employees in North Carolina
• July 1, 2013: Employers that employ 25 or more employees in North Carolina

Employers with seasonal temporary employees who work fewer than 90 days in a consecutive 12-month period are excepted from compliance, and the law also does not apply to employers that employ fewer than 25 employees in North Carolina.

An employer covered by the Act will be required to enter a new hire’s information reported on the Form I-9, Employment Eligibility Verification, into the E-Verify program to determine the eligibility of that employee to work in the United States. An employer must retain the records of the verification of the employee’s work authorization during the length of that employee’s employment and for one year after the end of the employment period.

Any person who has a good faith belief that an employer is violating the requirement to use E-Verify may file a complaint with the North Carolina Commissioner of Labor. The complaint may be anonymous. The commissioner will investigate valid complaints and may issue subpoenas for employment records from the employer as part of this investigation.

For a first violation of the Act, the North Carolina Commissioner of Labor will order the employer to file a sworn affidavit within three business days after the determination that the employer has violated the Act. The employer must swear in the affidavit that it has consulted with the employee and requested a verification through E-Verify. Failure to timely file this affidavit subjects the employer to a $10,000 civil penalty. A second violation of the Act subjects the employer to an additional $1,000 civil penalty, and a third violation subjects the employer to a $2,000 civil penalty for each required employee verification that the employer failed to make. The Act contains a provision allowing an employer to appeal the commissioner’s determination that the employer has violated the Act.

 For more information about instituting an E-verify program, please call Donna Ray Chmura at 919-706-4200 or dchmura@sandsanderson.com

Image via Wikipedia

Remember when political opponents attacked California gubernatorial candidate Meg Whitman over the social security no-match letter she received in the early 2000’s regarding her maid? Many employers may have wondered just what those letters were all about, because for the past three years, the Social Security Administration stopped sending them out. As the saying goes, “They’re Back,” and if you are an employer, you need to be concerned.

Employers will once again have to worry about “getting it right” upon receipt of a no-match letter. And, unfortunately, once again, there are only questions, and no clear answers.

The government states it will send a letter when employee information on the W-2 Form is either incomplete or a reported name or Social Security number does not match with the government’s records. The letters will be sent on an employee-by-employee basis. (In the past the Social Security Administration sent the employer a letter with a listing of names that had a number mismatches.)  According to the administration, the new letters will be sent when the government is unable to reach the individual directly about the discrepancy.

The new process is replete with legal issues for the employer. The letter tells the employer to first compare the information listed on the government’s letter to the employer’s records. If the records match, the employer is directed to “ask” the employee to give the name and Social Security number exactly as it appears on the employee’s Social Security card. Then, the form notes “(While the employee must furnish the SSN to you, the employee is not required to show you the Social Security card. But, seeing the card will help ensure that all records are correct.”) If there is a problem between the government’s records and the social security information given/shown by the employee, then the employer is directed to tell the employee to contact any Social Security office.

The question for the employer now becomes, what do you do?

First, as you may recall, you are not allowed to ask employees for their social security card as part of the I-9 process.  Now, you are being requested to “ask” for the information, and the suggestion is strongly made that you look at the card. There are no good answers yet, but here are a few tips to consider if you get these letters:

1. Don’t rely on a copy of the card in your records if you did receive it for I-9 purposes.

2. If you are going to ask for the actual SSI card, you need to make sure you always ask for the card from each employee who is the subject of the no-match letter. Asking only employees of a particular race or culture would be discriminatory.

3. If you decide to always ask for the card, then either always make a copy of the card, or never make a copy of the card. Whatever you decide, be consistent.

4. If the card looks fake, you are probably now on notice that the employee is not lawfully working. If you have reason to believe the card is fake, hope that the employee doesn’t show up to work again. If the employee returns to work, you will need to determine what next steps you may legally take to determine their status.

5. If you determine that the Social Security card does not show the employee’s correct name or Social Security number, or there is some other error, you must direct the employee to any Social Security office.

Unfortunately, the letter is completely silent about how long the employee has to correct the problem, and what you are to do if the problem remains uncorrected. On the other hand, you are directed by the letter to start using the correct name or Social Security number if you determine either is incorrect. So, how do you get the correct information? Stay tuned…….

If you need assistance with issues arising from receipt of the no-match letters, the North Carolina Employment lawyers at Sands Anderson will be pleased to hear from you.

We’d also like to know what you think. What problems do you anticipate these letters will present for you?

Related articles

• Originally posted on  Virginia Workplace Law

It can be risky, however, for employers or supervisors to recommend employees on LinkedIn or other social media sites.

As employment attorneys, we advise our employer clients to provide only confirmation of dates of employment, positions with the company and salary, rather than giving a traditional or more informative reference on behalf of former employees.

Providing negative information can lead to defamation suits, although North Carolina is one of 30 states that shields employers from such suits for providing truthful information about employees to prospective new employers.

Providing positive references, including a recommendation on LinkedIn, can lead to discrimination suits, where the employee uses the glowing reference as proof that his/her performance was not a problem, so the real reason for termination must have been discrimination based on race, religion, national origin, age or gender.

This advice goes against the culture of openness and sharing in social media, but I think it’s important for employers to know the risks. What do you think?

BioTech0296 wrote: if the owner/franchisee hired these morons, then he is responsible for their actions..NO EXCUSES!!!!

After two renegade Domino’s pizza employees posted viral “joke” videos on YouTube of them defiling sandwiches, Domino’s President Patrick Doyle announced the franchise will re-examine all of the corporate hiring practices to “make sure people like this don’t make it into our stores.”

What he’s getting at is avoiding negligent hiring and retention.

North Carolina courts typically recognize a tort claim for an employer’s negligent hiring or retention of employees where a plaintiff (victim) can establish: (1) a specific bad act by the employee in question; (2) the employee’s inherent unfitness or previous specified acts of negligence from which incompetence can be inferred; (3) the employer’s actual or constructive notice of the employee’s unfitness; and (4) injury resulting from such incompetence.

This is important to employers because it brings liability from the wrong-doer (employee) to the employer, who typically has “deeper pockets” and is a more attractive defendant in a lawsuit.

Typical examples of negligent hiring are hiring a bus driver with numerous traffic convictions, a controller with convictions for embezzlement or day care workers who are convicted sex offenders. Negligent retention is keeping these employees in position after you know about the traffic violations, embezzlement or sex crime. In these cases, a routine background check often reveals the initial unfitness for the job.

Courts will look at the fundamental questions of what did the employer know about its employees and when did it know. They will compare the employer’s hiring and retention practices to the industry standard and will determine if the employer used reasonable care.

North Carolina courts generally defer to employers on this issue, holding that there is an initial presumption that an employer uses due care in hiring employees, but this presumption can be overcome where a court finds that an employer ignored facts that would suggest that an employee is unfit or failed to follow customary hiring practices for its industry.

At a minimum, it is important to keep up with HR/hiring/retention practices in your industry. Employers should also consider implementing procedures for verifying facts given on resumes or applications, verifying and documenting employee references, using criminal background and credit checks for final job candidates, and pre-hiring drug tests (if appropriate) regardless of industry custom.

These areas are fraught with their own perils, such as improperly considering arrests instead of convictions, not complying with the Fair Credit Reporting Act or not following state drug testing laws, but a claim for negligent hiring could carry a much higher liability. See the above comment for an example of just how much you have to lose when you hire the wrong people.

March Highlights:

• The number of small business owners who say the economy is getting worse dropped to 60 percent, down from 69 percent the previous month and significantly below the all-time high of 79 percent reached in June 2008. Those who see the economy getting better rose from 12 percent to 16 percent.
• 24 percent of owners see economic conditions for their businesses improving, up from 19 percent in February and the highest response in this category since August 2008. Similarly, 47 percent see conditions getting worse, down from 54 percent in February.
• 41 percent of owners say they have experienced temporary cash flow issues over the past 90 days, basically unchanged from 42 percent in February.
• Views of the current economy remained constant: 90 percent rated the economy as fair or poor in March, unchanged from February.
• 48 percent of owners say they plan to decrease spending on business development over the next six months, a drop from 51 percent in February; while 21 percent plan to increase spending and 29 percent will make no changes.

This report surveys businesses with five or more employees, which would include the bulk of my clients. I know my business clients are closely monitoring their cash flow and bottom lines. So far, I have not had to counsel them on layoffs, and a few are actually growing. After a very slow fall and winter, I am seeing business activity pick up.

How do you feel about the local business climate?

The first search turned up a MySpace page. There was a picture of the applicant, drinking beer from a funnel. Under hobbies, the first entry was, “binge drinking.”

The second search turned up a personal blog (a good one, actually). The most recent entry said something like, “I am applying for some menial jobs that are below me, and I’m annoyed by it. I’ll certainly quit the minute I sell a few paintings.”

And the third? There were only six matches, and the sixth was from the local police department, indicating that the applicant had been arrested for shoplifting two years earlier.

Liz Strauss, a social networking marketing expert, mused on the potential dangers of out-of-context Twitter comments. Martin Zwilling of Start-up Professionals explored the wild-west atmosphere of such social networking sites as Facebook, Twitter and MySpace.

We have subjected ourselves to a staggering loss of anonymity, and many of us may not truly understand how we appear online. Parents routinely search babysitters, nannies and teachers. Employers and college admissions officers search applicant profiles. And that doesn’t even account for other social media risks: trademark and copyright violations, defamation, invasion of privacy, and wrongful discrimination claims from employees fired for information they disclosed in social media.

I am active on several online communities, including Twitter and LinkedIn. And before I post anything, I take an extra second to consider whether I would want that comment on the front page of the New York Times, or what my boss or mother would think. Others sometimes forget that their off-hand comments can have significant repercussions.

As a business lawyer, I strongly urge every company to think about how it wants to use social media (Twitter, MySpace, Facebook, LinkedIn) as a business tool and to draft a very specific corporate policy outlining how employees should use corporate email, internet, and social media. Or your company may be trying to put the Tweet back in the bottle.

These individuals, referred to as “assistance eligible individuals,” are entitled to a nine-month, 65-percent federal subsidy of the required COBRA premiums. The new COBRA rules also require employers to develop new COBRA notice documentation and COBRA payment administration procedures. Employers will bear the cost of the subsidy, but will be reimbursed via payroll tax credits. If the subsidy exceeds payroll taxes, employers can follow certain procedures to claim a direct reimbursement.

Coverage begins in the first period of COBRA continuation coverage after the law was passed. For example, if premiums are charged on a calendar month basis, then the subsidy will be applied starting March 1, 2009. The subsidy ends at the earliest of these milestones:

• An individual becomes eligible for subsequent coverage;
• Nine months following the first subsidy expires; or
• the maximum COBRA coverage period expires.

Employers also are required to provide cash refunds or credits to assistance eligible individuals who pay the full COBRA premium for coverage while the subsidy applies.

Extended election period

Before April 18, 2009, Employers must notify employees who were involuntarily terminated between September 1, 2008 and February 17, 2009, and who waived COBRA coverage or are no longer covered, and let them know that subsedized coverage is available. These employees have 60 days to elect COBRA coverage.

What Employers Should Do Now:

The Department of Labor will issue a new sample COBRA notice by March 19, 2009. Until then:

• Learn about the new COBRA rules under the stimulus law.
• Watch for more guidance about the new rules
• Identify all assistance eligible employees (past and future);
• Develop plans to notify assistance eligible employees of the new COBRA
• Determine the correct premium subsidies to apply;
• Develop accounting and other processes to capture data needed to seek the federal subsidy and report the detail when required;
• Amend plan documents, plan group insurance contracts, and plan administration contracts;
• Contact the plan’s COBRA administrator and ensure compliance steps are taken; and/or
• Contact your employment attorney.