labor lawAdivision of labor law center

The U.S. Citizenship and Immigration Services (USCIS) recently updated the I-9 Form to verify employee eligibility for employment. Some types of identification have been removed from the list of acceptable documents, while at least one has been added.

The revised I-9 forms apply to all newly hired employees and for recertification of current employees. Recertification is most often required when one of the employee’s qualifying documents has expired.  Current employees are not required to complete a new I-9 as long as all the original documents are unexpired.

There is a grace period for employers to begin using the new form, until the standards are published in the Federal Register. Once that publication occurs, employers who use the old form will be subject to fines and penalties.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 requires employers to use the I-9 form to verify eligibility and identity of every new employee, including U.S. citizens. The completed forms are to be maintained on file for three years after the employee’s date of hire. If an employee is terminated within the first two years, the form must be kept on file for one year after the termination.

The newly revised I-9 removes five documents from “List A” which establish both identity and employment Eligibility.  Documents that will no longer be accepted are:

• Certificate of U.S. Citizenship (Form N-560 or N-561)
• Certificate of Naturalization (Form N-550 or N-570)
• Alien Registration Receipt Card (I-151)
• Unexpired Reentry Permit (Form I-327)
• Unexpired Refugee Travel Document (Form I-571)

The documents that employers can now accept from List A include:

• U.S. passport
• Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
• An unexpired foreign passport with a temporary I-551 stamp
• An unexpired Employment Authorization Document that contains a photograph(Form I-766, I-688, I-688A or I-688B)
• An unexpired foreign passport with an unexpired “Arrival-Departure Record,” Form I-94 with the alien’s non-immigrant status, if that status authorizes the alien to work for the employer

The changes to List A are the only alterations to the I-9 from the previous version. Items under List B to establish identity, and List C to establish employment eligibility remain the same.

The items on List B to establish identity, which are unchanged, include:

• Driver’s license or ID card issued by a state or possession of the U.S. with a photo or identifying information such as name, date of birth, gender, height, eye color and address
• ID card issued by a federal, state or local government agency or entity with a photograph or identifying information
• School ID card with a photograph
• Voter registration card
• U.S. military ID card or draft record
• U.S. Coast Guard Merchant Mariner card
• Native American tribal document
• Driver’s license issued by a Canadian government authority

For people under 18 who cannot produce any of the above documents, a school record, or report card may be accepted. A clinic, doctor or hospital record is also acceptable under these circumstances. However, neither of these documents can be accepted for any worker over 18.

The items on List C to establish employment eligibility, which are unchanged,  include:

• U.S. Social Security card issued by the Social Security Administration (except: not a card that states it is not valid for employment)
• Certification of Birth Abroad issued by the U.S. Department of State (Form FS-545 or Form DS- 1350)
• Original or certified copy of a birth certificate issued by a state, county or municipal authority or outlying possession of the U.S., with an official seal
• Native American tribal document
• U.S. Citizen ID Card (Form I-197)
• ID Card for use of Resident Citizen in the U.S. (Form I-179)
• Unexpired employment authorization document issued by the Department of Homeland Security (other than those listed under List A)

On the new I-9 form as on the old one, employers must examine one document from List A or one document from List B plus one document from List C. Employers are required to record the title, number and expiration date of the documents. Employers are not required to make copies of the documents, however, they are expressly allowed to do so. Many employers do keep copies of the qualifying documents, as an affirmative defense against charges of willfully hiring illegal immigrants. Such copies should be kept together with other I-9 documents in a file separate from the employee’s personnel file.

As always, employers cannot use the I-9 form to illegally discriminate against applicants or employees based on race, color, religion, sex or national origin. For example, it would be illegal for an employer to require Hispanic applicants to complete an I-9 form before being interviewed, unless applicants of other ethnic groups were also required to do so. For this reason, many employers will have the worker complete the I-9 form on the first day of work.

If an interviewer is concerned about legal eligibility to work, it is perfectly acceptable to ask “Can you legally work in the United States?” as long as all applicants are asked the same question.

Discrimination based on citizenship status is specifically prohibited.  An employer cannot refuse to hire someone who is legally eligible to work, simply because that person is not a citizen. 

A recent EEOC settlement charges that a worldwide oil drilling company subjected black employees to racial harassment on offshore oil rigs. The harassment included a racially hostile work environment, including the display of nooses in the workplace on Rig 108.

Under the agreement, Helmerich & Payne International Drilling Company (or H&P) of Tulsa, Oklahoma, will pay more than $290,000 in damages. H&P’s global operations include contract drilling in the U.S., South American and Africa, among others.

The suit alleges that H&P tolerated a hostile work environment for African American men and women aboard the oil rig, including derogatory language and race-based name-calling directed at black employees.

The nearly $300,000 in damages goes to 7 employees, for an average of more than $42,800 each.

In addition, the consent decree requires that H&P conduct anti-discrimination training and post a notice about the settlement. The company is forbidden to engage in racial harassment or retaliation against employees. It also requires that H&P redistribute the company’s policy prohibiting racial harassment to all employees, and that H&P report some types of complaints of harassment or retaliation to the EEOC for the next two years, for continued monitoring.

 “We are pleased that H & P has taken these important steps to improve its work environment,” said C. Emanuel Smith, regional attorney for the EEOC’s Birmingham District, which includes Alabama, much of Mississippi, and the Florida Panhandle. “The monetary relief for the victims in this case should remind employers that there is a high price to pay for racial harassment.”
Commenting from agency headquarters in Washington, EEOC Chair Naomi C. Earp noted that, “A noose is a racial icon that constitutes a severe form of harassment under Title VII of the Civil Rights Act. Nooses are closely associated with racial intimidation, violence and death, and therefore have no business in the workplace. It’s time for corporate America to be more proactive in preventing and eliminating racist behavior. The EEOC intends to make clear that race and color discrimination in the workplace, whether verbal or behavioral, is unacceptable and will not be tolerated.”

EEOC Birmingham District Director Delner Franklin-Thomas, said, “Despite what some may think, overt forms of race and color discrimination have resurfaced in today’s workplace – in addition to new and more subtle forms of racism. There has been strong evidence over the past two decades, as shown in this case, that racist language and nooses are far too common on the job.”

While not admitting any wrongdoing, H&P has agreed to the terms of the settlement.

This is just the most recent in a series of discrimination suits this year. The company, Quietflex Manufacturing Co., L.P., paid $2.8 million in its settlement with the workers. It denied any wrongdoing. The workers had staged a work stoppage to protest the discrimination, and were fired. The company, however, shortly afterward hired them back.

Target Corp. paid $775,000 in January as a result of a racial harassment suit that accused the company of violating Title VII of the Civil Rights Act of 1964 by creating a hostile work environment. Again, the EEOC acted on behalf of the complainant, an employee of the company’s Springfield, Pennsylvania plant who was training to become a store manager. EEOC said the employee, Michael Hill, faced racial harassment from a store manager and as a result was forced to resign. In the settlement, Target also agreed to conduct employee-training sessions at the Springfield store. The company denied any wrongdoing.

Jacqueline McNair, regional attorney for EEOC, said she expected the training program and Target’s emphasis on anti-discrimination policies would “create a more employee friendly work environment at Target’s facility.”

Title VII declares it illegal to discriminate against anyone because of race, color, religion, sex, or national origin in hiring. It also declares that a firm that creates a hostile work environment in essence forces the worker involved to resign. Title VII prohibits retaliation against any worker who makes a discrimination complaint. All of the companies mentioned in this article deny any wrongdoing.  

The EEOC has released new guidelines on discrimination against workers with caregiving responsibilities.

The Equal Employment Opportunity Commission, or EEOC, describes this as a “proactive” measure to combat the emerging discrimination in the workplace against employees with family responsibilities.

The enforcement guidelines, entitled “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities,” detail the new EEOC regulations regarding how the agency will enforce current laws against discrimination. Treating a parent or other employee with caregiving responsibilities differently may constitute unlawful discrimination under both Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990, or ADA.

With changing workplace demographics, including the “sandwich generation” caring for both young children and aging parents, and more women in the workforce, the EEOC is seeing an increasing number of complaints based on family responsibilities. These responsibilities may vary depending upon gender, race or ethnicity, according to the EEOC.

“With this new guidance, the commission is clarifying how the federal EEO laws apply to employees who struggle to balance work and family,” says EEOC Vice Chair Leslie E. Silverman. She adds, “Fortunately, many employers have recognized employees’ need to balance work and family and have responded in very positive and creative ways.”

This document is not intended to create a new protected category of employee – only a statute can do that. Instead, it serves to illustrate the circumstances in which stereotyping or disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.

The EEOC highlights a number of discrimination issues that the agency has encountered, including:

• Treating male caregivers more favorably than female caregivers
• Discrimination against working fathers
• Discrimination against “women of color” with caregiving responsibilities

One of the most insidious types of Family Responsibilities Discrimination, or FRD, is stereotyping. In one case, an employer assigned women to less desirable projects based on the assumption that as new mothers, they would be less committed to their jobs. In another case, a company refused to consider the mother of small children for a position that involved extensive travel, although they did consider fathers for the position. In many cases, employers who engage in this type of illegal behavior actually think they are doing something positive for the caregiving employee.

Another serious type of FRD involves workers who care for elderly parents, or for a person of any age with a disability. In a number of cases, employers have refused to hire an applicant who provides such care. The EEOC points out that this is illegal discrimination based on a simple association with a person with a disability. The employer is making an unfounded assumption that the caregiver’s responsibilities will reduce the worker’s effectiveness on the job.

In one case, a woman’s job performance was ranked lower after she became caregiver for her grandchildren, even though she could prove that in objective terms, her performance was unchanged.

The attorney James McDonald of the law firm Fisher & Phillips writes in his column Common Sense Advice on FRD, “Family responsibility discrimination has been claimed with increasing frequency over the past few years by parents and other caregivers who feel that they have lost job opportunities as a result of their responsibilities at home.” He adds that these new guidelines from the EEOC will “raise awareness of the issue among employees.”

The EEOC investigates a number of complaints each year, including those of discrimination in the workplace based on race, color, religion, sex and national ancestry. The agency also enforces the anti-discrimination clauses of the Americans with Disabilities Act, and laws prohibiting discrimination against pregnant women and workers over 40.

Veterans have a lot to look forward to this Veterans Day. Not too long ago, Secretary of Labor Elaine L. Chao announced 94 grants, totaling nearly $27 million, to provide approximately 17,000 veterans with job training to help them succeed in civilian careers. The grants are being awarded under the U.S. Department of Labor’s Veterans’ Workforce Investment Program (VWIP) and Homeless Veterans Reintegration Program (HVRP).

“These $27 million in grants will help more than 16,000 veterans access the resources they need to find good jobs and build a bright future for themselves and their families,” said Secretary Chao.

The funds are being awarded on a competitive basis to state and local workforce investment boards, local public agencies and nonprofit organizations, including faith-based and community organizations. According to Secretary Chao, these agencies are familiar with the areas and populations to be served and have demonstrated that they can administer effective programs.

More than $6.7 million will support 12 VWIP grants to help veterans from targeted groups overcome employment barriers and ease their transition into unsubsidized jobs. Through this program, veterans receive skills assessments, individual job counseling, labor market information, classroom or on-the-job training, skills upgrading and retraining, placement assistance and crucial follow-up services. The Labor Department’s Veterans’ Employment and Training Service (VETS) expects these grants to provide training for more than 3,800 veterans, who may also be eligible for services through other Workforce Investment Act programs for economically disadvantaged or dislocated workers.

The program puts special emphasis on homeless vets. To assist homeless veterans with reintegration into America’s workforce, the Labor Department is awarding more than $20 million in 82 HVRP grants. These funds are being distributed nationwide through 35 newly competed grants and 47 current grants receiving second- and third-year funding. Homeless veterans may receive occupational, classroom and on-the-job training, as well as job search and placement assistance, including follow-up services.

The HVRP grants include two cooperative agreements that will assist in developing the HVRP National Technical Assistance Center. The center will provide technical assistance to current grantees, potential applicants and the public; gather grantee best practices, conduct employment-related research on homeless veterans; conduct regional grantee training sessions and self-employment boot camps; and perform outreach to the employer community to increase job opportunities for veterans.

VETS expects these funds to help more than 12,600 veterans. HVRP is recognized as an extraordinarily efficient and effective program and is the only federal program that focuses exclusively on employment of veterans who are homeless.

Grantees under both programs network and coordinate their efforts with various local, state and federal social service providers.  

In addition to these grants specifically to help veterans, the DOL offers several kinds of grants.

One, the National Emergency Grant, or NEG, is awarded at the discretion of the Labor Secretary. It is designed to offer job-seeking services to states and localities during “significant dislocation events,” when states and localities are overwhelmed and don’t have the resources to cope alone. Layoffs of 50 or more workers qualify, as do layoffs involving fewer workers if a small community is hit hard.

Another, the Regional Innovation Grant, provides funds when governments or non-profit agencies join forces with business to help train laid-off workers for better-paid jobs in newer types of businesses.

A number of recent grants have benefited veterans as well as other workers. A $3 million grant will offer temporary work and benefits to employees in parts of Minnesota that were hit by flash flooding.

When Brooks Eckerd was acquired by Rite Aid, about 246 employees in the Brooks Eckerd corporate offices in Warwick, Rhode Island lost their jobs. Now, a grant of more than $1.2 million will assist them.

A grant of nearly $1.1 million went to help workers in Lamar, Missouri, laid off by the closing of the O’Sullivan Industries plant there.

Two grants totaling more than $1.94 million helped workers unemployed by plant closings in Massachusetts and Missouri.

One of ODEP’s success stories is Lois C., an artist and entrepreneur living in DeKalb, Georgia. Lois has mental disabilities. Beginning in adolescence, she lived for decades in state institutions for people with disabilities. No one ever expected Lois to live independently…but she proved them wrong. Lois benefited from a WorkFORCE Action Grant. Lois used her grant to start a business marketing her original artwork, including portraits in pastels and acrylics. Today, Lois’ artwork is sold in galleries, and appears on postcards and calendars. Lois’ success has inspired others, and motivated her to make art her life’s work.

WorkFORCE grants help disabled people in institutions successfully make the transition to employment, living and working as part of the community. The grants are funded by ODEP.

Programs like WorkFORCE exist because underemployment of workers with disabilities persists. It remains a chronic problem, says the Office for Disability Employment Programs, or ODEP. The problem was particularly acute before 1990, when the Americans with Disabilities Act (ADA) was passed. The ADA made it illegal to discriminate on the basis of disabilities when it came to training, promotion and hiring of employees.

Another program to help individuals with disabilities on the road to independence is disabilityworks in Illinois. This project uses a business model targeting both the supply and demand sides of the employment picture. Disabilityworks collaborates with companies to develop employment opportunities for workers with disabilities by increasing awareness about work incentives and workforce development services. The program also conducts educational programs for youth and adults with disabilities. 

Disabilityworks is funded primarily by the State of Illinois Department of Commerce and Economic Opportunity, with support from the Chicagoland Chamber of Commerce and the city of Chicago. The project partners with the Chicagoland Provider Leadership Network, which represents 117 organizations, and the Chicagoland Business Leadership Network, which has 63 member businesses. 

In its first year, disabilityworks helped create jobs for 194 people with disabilities. More than 90% of those jobs were in private industry. 

In 2006, the Secretary of Labor and ODEP recognized disabilityworks with a New Freedom Initiative Award for demonstrating exemplary and innovative efforts in furthering the employment and workplace environment for people with disabilities.

Another act, the New Freedom Initiative of 2001, works to insure that people with disabilities are guaranteed complete participation in society including employment, training, and education. The “Ticket to Work” plan was designed to encourage the admission of the disabled to placement and training services.

October is National Disability Awareness month, declared by President George W. Bush as a time to recognize the achievements of Americans who have disabilities. It remains a time to stress a commitment to insuring employment for the disabled, and to guarantee workplace diversity.

Dr. Roy Grizzard was, until recently, the director of ODEP, and was himself an example of the potential opportunities for disabled workers. Dr. Grizzard suffered a degenerative disorder of the retina called retinitis pigmentosa when he was in his 20’s, and by 40 was legally blind. Nevertheless he earned a PhD and established careers as both teacher and school administrator. From there he joined a state agency for the disabled and eventually became head of ODEP.

During his leadership, ODEP developed an intensive program with state and local agencies to stress the need for bringing disabled employees into the workplace.

Dave Dravecky received ODEP’s first SPIRIT Award, recognizing disabled people who demonstrate factors like integrity, being a role model, independence, success, leadership, and perseverance in pursuit of success. He was a pitcher for the Giants who got back into the sport after treatments for bone cancer in his pitching arm. Eventually the cancer returned, and Dravecky was forced to have his left arm and shoulder amputated. That did not stop him. He went on to a new career as a motivational speaker and best-selling author.