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Don't Ask, Don't Tell? Good Reasons to Stop Asking About Salary History
By: Sarah Stula

Does your company ask about salary history during the application and hiring process? If so, you may want to re-think that approach.

Nationwide, women earn about 85% of men’s wages, and Kansas is no exception. In an effort to help reduce the gender pay bias, a growing number of states and cities have banned employers from inquiring about salary history during hiring. The rationale behind these bans is that, when salary offers are based on salary history, women who have been previously underpaid will continue to be underpaid. Thus, salary history inquiry bans aim to stop the cycle of underpaying women.

Salary history inquiry bans have been adopted from coast to coast—from California to New York City—and now, Kansas City, Missouri, has joined their ranks. Effective October 2019, the Kansas City ordinance generally prohibits an employer with six or more employees from engaging in certain hiring practices, including: (1) inquiring about a job applicant’s salary history; (2) searching public records to obtain salary history; (3) relying on salary history to make hiring decisions; and (4) retaliating against an applicant for failing to disclose salary history. These prohibitions do not apply to applicants for internal transfers or promotions with their current employer, and employers are permitted to discuss salary expectations with applicants.

If your company operates in Kansas City, Missouri, or other locations with salary history inquiry bans, you obviously need to update your hiring procedures accordingly, or risk liability and penalties down the road.

But even if an employer is not subject to a state      Continue Reading...

Kansas Agencies Ban-the-Box
By: Teresa Shulda

A growing number of employers have voluntarily decided to eliminate questions about criminal convictions and arrests from their employment applications. Koch Industries, a Kansas-based company and one of the country’s largest private employers, has been on the leading edge of the movement. Now, Kansas Governor Jeff Colyer is joining the movement with a recent executive order. 

What is the “ban-the-box” movement?
“Ban-the-box” refers to the box that has historically appeared on many job applications asking the applicant whether he or she has ever been arrested or convicted of a crime. The “ban-the-box” movement has been an effort organized by civil rights organizations composed primarily of formerly incarcerated people and their families. Statistics show that lack of employment makes it more likely that ex-offenders will re-offend, so those supporting this movement argue that employing more individuals with criminal convictions will have a positive impact on society. In essence, supporters of the movement advocate for enabling people with prior convictions to show their qualifications for a position before being automatically excluded from the job based on their criminal record.
Is it legal to ask applicants about their criminal history on the application?
Maybe; maybe not. Currently, 31 states and more than 150 cities and counties have adopted laws or policies “banning” the box for government positions. In other words, public-sector employers in these states and cities cannot include inquiries on application forms that would require the applicant to disclose arrest and conviction information. Eleven states (California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode      Continue Reading...
On Campus Recruiting and Age Discrimination
By: Donald Berner

In a recent decision, the 11th Circuit Court of Appeals ruled that on campus hiring programs used by employers cannot serve as the basis for an age discrimination claim.  The issue resolved by the Court revolved around whether older applicants can make the claim that on campus hiring creates a disparate impact against older applicants.  The disparate impact theory approach was rejected by the Court requiring older applicants to bring claims only for intentional bias.  In plain language, the idea that on campus hiring disadvantages older applicants was rejected by the Court as the grounds for a hiring discrimination claim.   

Employers should keep in mind that this ruling directly applies to only a couple of states in the southeast.  The issue is still unresolved for most of the country, although this ruling would be persuasive in other areas.  This is an issue to keep an eye on as other jurisdictions grapple with these types of age discrimination claims from older applicants. 

H-1B Season is Approaching
By: Donald Berner

Now that the calendar has turned to 2015 it is time to begin considering the rapid approach of the H-1B filing window.  The H-1B visa is the most commonly utilized work visa for employers.  While USCIS has not issued any information yet with respect to the filing window and lottery process, employers should expect 2015 to be no different than the last couple of years.  The H-1B cap for the 2016 fiscal year (starts on October 1, 2015) will be hit in the initial filing window.  This means employers seeking a H-1B visa for an employee will need to be prepared to file the application by April 1, 2015, to participate in the lottery for a visa.

As a word of warning, if you have individuals working for you that are utilizing OPT (Optional Practical Training) this blog posting applies to you.  If these individuals haven't asked yet, expect them to be asking soon about an H-1B filing in this upcoming filing window.  Considering the need to file by April 1, 2015, it isn't too early to start talking through these issues and planning for any filings. 


Foreign Student Employment
By: Donald Berner

As the end of the school year approaches and summer begins, employers utilizing the services of foreign students as employees should take a moment to review the work authorization of those individuals.  It is important to remember the student's presence in the U.S. doesn't necessarily mean the student is authorized to work.  In addition, those students with work authorization may have an expiring work authorization which is equally problematic for employers. 

Foreign students in the U.S. typically obtain work authorization through one of two vehicles -- CPT or OPT.  CPT stands for curricular practical training and OPT stands for optional practical training.  The authority to work under CPT and OPT are dramatically different.  CPT is work authorization provided through the university for a specific employer for a limited time period (typically a semester).  Think of CPT as an internship while going to school.  Also remember that while CPT has a short approval length, the university can typically provide additional semesters of CPT time.  OPT is typically used by students upon completion of a degree program.  Students taking OPT time are not limited to a specific employer and receive an employment authorization document allowing work at any employer.  OPT is also generally for a twelve month period and in most cases cannot be renewed/extended. 

The key message for employers is to keep an eye on the types and expiration dates for work authorization.  Allowing a student to continue working after the expiration of the CPT or OPT time can result in fines for employers and immigration status problems for the student. 

Dealing with Workplace Imposters
By: Boyd Byers

You probably saw the video clips or at least heard about the fake sign language interpreter at Nelson Mandela’s memorial service. As President Obama and other dignitaries addressed the crowd, the interpreter, Thamsanqa Jantjie, stood on stage next to them and flapped his arms and hands around making meaningless gestures. “It was almost like he was doing baseball signs,” deaf actress Marlee Matlin said. “I was appalled.” Jantjie had faked his credentials and managed to get a security clearance pass, much to the embarrassment of South African officials. It was later discovered that he suffered from schizophrenia and had been accused of murder. While this was an extreme case, it is not uncommon for job applicants to lie about their credentials. Studies show that one-fourth to one-half of job seekers provide false information about their education, experience, or other background information to prospective employers. For steps you can take to detect and deal with workplace imposters, click on the following link to a prior post on this topic. (The Great Imposter (07/29/2011)) A little work on the front end can save you headaches and money in the long run.

E-Verify Returns Post-Shutdown
By: Donald Berner

Now that the shutdown has come to a close and federal workers have returned to their offices, it is time for employers to get all caught up.  One of those catch-up tasks is the entry in E-Verify of employees hired during the federal government shutdown.  Employers should enter all employees hired during the shutdown prior to November 5, 2013.  In response to any question generated in the system related to the late entry, employers should check the "other" box and enter "federal government shutdown" in the text box.  Now would be a good time to double check to make sure all your new hires over the last three weeks have been entered into the system.  Also keep in mind, employees hired now that the government has resumed operations must be plugged into E-Verify in accordance with the normal rules.  The additional time for data entry applies only to those hired during the shutdown.

New Affirmative Action Rules for Government Contractors
By: Boyd Byers
Federal contractors and subcontractors now must adopt quantifiable goals for the employment of individuals with disabilities and protected veterans, according to new regulations issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs. The new Rehabilitation Act regulations require contractors to establish a “utilization goal” of having 7 percent of their workforce be comprised of persons with disabilities. Similarly, the new regulations under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) require contractors to establish a “benchmark” for hiring veterans. Contractors may either use the national percentage of veterans in the civilian labor force, which currently stands at 8 percent, or develop their own hiring benchmark based on factors listed in the regulations.
Both sets of new regulations point out that the respective utilization goals and benchmarks are neither rigid quotas, nor are they floors or ceilings on the hiring and employment of individuals with disabilities or protected veterans. A contractor’s failure to meet these metrics, however, will invite government scrutiny into the adequacy of its affirmative efforts to recruit and employ members of these protected classes.
In addition to these new metrics, the regulations impose additional data collection, self-identification, and other requirements on contractors. For example, contractors now must collect and retain data regarding the total number of job openings and jobs filled; the total number of job applicants and the number of applicants known to have disabilities or to be veterans;      Continue Reading...
Memorable Job Candidates
By: Boyd Byers

During a job interview, the HR manager asked the applicant, "What's your greatest weakness?" The applicant answered, "Honesty." The HR manager followed up, "I don't think honesty is a weakness." To which the applicant retorted, "I don't give a sh*t what you think."

That joke is a classic. But there are plenty of real-world interviews that are just as funny. In a recent survey by CareerBuilder, hiring managers and HR professionals were asked to share the most-memorable methods candidates used to stand out from the crowd, and whether their creativity backfired or got them hired.   

Here are some my favorite techniques that (not surprisingly) didn't work so well for the candidate:

  • Back-flipping into the room.
  • Dressing like a clown.
  • Doing a tarot card reading.
  • Giving the interviewer a lotto ticket.
  • Sending a fruit basket to the interviewer's home address . . . which the interviewer hadn't given her.

Some memorable interviews that resulted in job offers included the following:

  • Repairing a piece of company equipment during the interview.
  • Asking to be interviewed in Spanish to showcase his skills.
  • Volunteering to help make copies when he saw the interviewer's assistant was frazzled.

You can read the top 10 successful and unsuccessful methods here. Has an applicant you interviewed ever pulled a memorable stunt, and did it work? Tell      Continue Reading...

E-Verify Goes Dark
By: Donald Berner

Employers are not likely to experience much disruption due to the shutdown of the federal government.  With the shutdown now underway, one of those disruptions is now perfectly clear.  Employers using E-Verify will not have access to the system until the shutdown comes to an end.  Employers should continue completing I-9 forms and operating business as usual.  Once the shutdown occurs, the new hires will then be entered into E-Verify.  For those employers with pending tentative non-confirmations, there will be additional time provided to allow for a resolution.  Employers should continue to employ any individuals in this circumstance until such time as the shutdown ends.  Stay tuned for further developments regarding the E-Verify tool. 

‘Not so fast,’ Kansas AG tells EEOC
By: Boyd Byers

The college football season is upon us. Which means the return of the antics and banter of Lee Corso, Kirk Herbstreit, and Chris Fowler on ESPN’s College GameDay program. As part of their weekly shtick, Herbstreit makes a prediction about a game, to which Corso expresses wild disagreement, uttering his catchphrase, “Not so fast, my friend!”

Last year the Equal Employment Opportunity Commission issued controversial enforcement guidance regarding the use of arrest and conviction records in employment decisions. This summer the EEOC put its playbook into action by suing two employers, BMW and Dollar General, for their use of criminal background checks. In response, the Kansas Attorney General (along with the AGs from eight other states) said, “Not so fast!” Well, not literally. And, unlike Lee Corso, they did not say “my friend.” What the AGs actually said, in an open letter to the EEOC, is that the guidance and lawsuits are “misguided” and “a quintessential example of gross federal overreach.”  Boo Yah!
Things went from bad to worse for the EEOC two weeks later, when a federal court punted the commission’s lawsuit against another employer based on its use of criminal background checks. The EEOC alleged that the background checks caused a disparate number of African-American and male workers to be disqualified from jobs. But the court threw out the case, calling the EEOC’s analysis “flawed,” “rife with analytical errors,” “laughable,” and “an egregious example of scientific dishonesty." Read the play-by-play below.
EEOC game plan
In April of last year, the EEOC issued Enforcement Guidance      Continue Reading...
Miss Utah and the Equal Pay Act
By: Boyd Byers

She didn’t win the crown, but Miss Utah made the most news after the Miss USA pageant this summer. Her bungled response to a question about the gender pay gap went viral and was seen by millions on the Internet. But it also generated serious discussion about equal pay.   

'Create education better'

The question: “A recent report shows that in 40 percent of families with children, women are the primary earners, yet they continue to earn less than men. What does this say about society?”
Miss Utah’s answer: “I think we can relate this back to education and how we are continuing to try to strive to … [long pause] figure out how to create jobs right now—that is the biggest problem. And, I think, especially the men are, um, seen as the leaders of this and so we need to figure out how to create education better so that we can solve this problem.” Cringe.
Predictably, Miss Utah’s epic fail lit up the twitterverse and blogosphere. But she got a chance at Web redemption on the “Today” show a few days later. She told host Matt Lauer that the question was “confusing” to her. So he gave her a do-over. Her new (scripted and rehearsed) answer was far better: “So this is not okay, it needs to be equal pay for equal work, and it's hard enough already to earn a living and it shouldn't be harder just because you're a woman."
Miss Utah’s question was prompted by the 50th anniversary of the Equal      Continue Reading...
EEOC Sues Employers Over Criminal Background Checks
By: Boyd Byers

Last year the EEOC issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decision Under Title VII of the Civil Rights Act of 1964. As explained in the Guidance, an employer's use of an individual's criminal history in making employment decisions may, in some instances, violate prohibitions against employment discrimination, particularly with regard to race and national origin. This can occur when an employer's neutral policy disproportionately impacts persons of a particular race or national origin, and the policy is not job-related and consistent with business necessity. Last week the EEOC put its money where its mouth is by suing two employers, BMW and Dollar General, for their use of criminal background checks.     

In the suit against BMW, the EEOC alleges that BMW disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity. The EEOC alleges that after BMW ended its contract with UTi Integrated Logistics, Inc. ("UTi"), which provided logistic services to BMW at a manufacturing facility, UTi employees were informed of the need to re-apply with the new contractor to retain their positions in the BMW warehouse.  As part of the application process, BMW directed the new contractor to perform new criminal background checks on every current UTi employee applying for transition of employment. The new contractor subsequently discovered that several UTi employees had criminal convictions in violation of BMW's criminal conviction policy. As a result, those employees were told that they no longer met the      Continue Reading...

Electronic Population of the Employee Section of the I-9 Form
By: Donald Berner

Immigration and Customs Enforcement (ICE) just provided employers with some troubling guidance on the pre-population of the employee information (Section 1) portion of the I-9 form. Employers with robust human resources systems that integrate the I-9 form into the mix may have reason to be concerned about this problematic new guidance.  

According to ICE, the pre-population of Section 1 is not acceptable under any circumstance. The ICE position is that the employee must complete Section 1 of the I-9 form themselves. The notion that the data placed into Section 1 originates from employee provided data carries no weight with ICE. The ICE view is that any pre-population of the I-9 form based on data input into a human resources system is unacceptable. 

Employers that continue to utilize this practice may find themselves at significant risk should ICE conduct an audit of the employer's I-9 process. This change in position is a fairly dramatic shift in ICE's position on this employer practice. It also seems to be a bit of a drastic change, considering the employee is reviewing and signing the data placed into Section 1. One can only hope ICE changes direction on this decision.

States Continue to Weigh in on Social Media Access
By: Donald Berner

State legislatures continue to debate and pass laws restricting employer behaviors with respect to the access to employee/applicant social media accounts. 

At the present time, six states (CA, IL, MI, MD, NM, and UT)  have passed legislation on this topic and there will likely be others in time. The primary focus of the legislation to date has been to prohibit employers from requiring candidates/employees to provide passwords and access to private accounts. Most of the state efforts have not tried to prevent employers from reviewing publicly available items published via social media. 

This trend is likely to continue and employers with multi-state operations should be paying attention to these developing statutory enactments. Furthermore, even if you are in a state that doesn't prohibit you from requiring employees to show you private social media areas, you might consider whether you truly want to engage in that type of behavior. There is a pretty strong element of it just not feeling right. Those are the types of feelings jurors and other fact finders are likely to have as well. In addition, who knows what those private pages/areas are going to teach you. There are plenty of facts that you don't really want to know when considering a candidate/employee and their future with your company.


Biggest Job Interview Blunders
By: Boyd Byers

If you’ve ever interviewed job applicants, you’ve probably encountered some of the usual suspects. The improperly dressed candidate with bad hygiene. The guy who got in the door by “embellishing” his resume but obviously is unqualified. The gal who shows up 45 minutes late stressed out and disheveled. And, at the other end of the spectrum, the overenthusiastic applicant who interjects your first name into every single sentence during the interview. 

But these pale in comparison to the “most memorable interview blunders” published by CareerBuilder last week. Each year the company surveys thousands of hiring managers to identify the most-common and most-outlandish mistakes made by job candidates. Here are my favorites from this year’s study.
  • Candidate denied having a cell phone with him . . . even though it was ringing in his briefcase.
  • Candidate asked to be paid “under the table.”
  • Candidate called his wife during the interview to ask what they were having for dinner.
  • Candidate said he would do whatever it takes to get the job done, legal or not.
  • Candidate said he didn’t want the job if he had to work a lot.
  • And, at the top of my list, the candidate who called in sick to her current employer, faking an illness, during the interview.
 You can read the full list here.
J-1 Visa Waivers for Physicians Under the Conrad 30 Program
By: Donald Berner

The new government fiscal year started on October 1st which means it is time to begin preparing and filing J-1 visa waiver applications for physicians under the Conrad 30 program.  The program is used by medical employers (hospitals, clinics, practice groups, etc.) to hire foreign physicians to work in medical provider shortage areas (HPSA or MUA) or outside of shortage areas but providing care to residents within shortage areas.  The program provides Kansas employers with a great tool to recruit physicians to these shortage areas.  For more information click here.

Another Potential Facebook Casualty
By: Donald Berner

Most of you know by now that social media websites can be dangerous in the employment context. Apparently, one of the NFL's replacement referees failed to get that memo. Over the weekend, the NFL was forced to replace a referee on a crew after learning of his posts on Facebook highlighting that he was a New Orleans Saints fan. Apparently the postings included photos of the referee in his Saints jersey at a tailgate party. The bad news for the NFL is that this referee was assigned to call the Saints game on Sunday. Nothing like being placed in a position to officiate your team's game. As of today, the NFL has not terminated the referee for this potential bias. Hopefully, the NFL is smart enough to realize this conflict of interest goes beyond just a game involving the Saints, as his decisions in another game could easily benefit the Saints. I would assume the NFL will piece all this together and take appropriate action. Stay tuned to see if this social media dust up includes some further employment action and whether that action leads to some other legal process. 

Do You Know? Wage and Benefit Notification
By: Boyd Byers

Regular readers of this blog may have noticed that there has not been a lot of Kansas-specific content lately. No, we haven't forgotten that this is the Kansas Employment Law Blog. But when the legislature is not in session, and the Kansas Supreme Court and Kansas Court of Appeals are not cranking out decisions in employment-related cases, there simply are not a lot of state-specific new developments to talk about. And most employment law and employee benefits issues are, by their nature, federal in scope. So we've been feeding you a steady diet of federal law developments, practical advice based on general employment law principles, and my musings on pop culture, statistics, and wacky cases (all with an employment law nexus, however strained). 

To provide more Kansas content, we are starting a new, semi-regular feature called Do You Know? These articles will discuss various contours of Kansas employment law that are often overlooked or misunderstood.  We'll start with the Kansas Wage Payment Act's notification requirements. 

Do you know that upon an employee's request, a Kansas employer must furnish the following information in writing:

  • Rate of pay and date and place of payment;
  • Any changes in rate of pay or date and place of payment prior to the date of such changes;
  • Employment practices and policies regarding vacation pay, sick pay, and any other benefits to which the employee is entitled and that have a direct bearing upon wages payable; and
  • An itemized statement of deductions made from the employee's wages for each pay period deductions are made?

In      Continue Reading...

Employer Flunks the Test with Pre-Employment Testing
By: Donald Berner

The use of pre-employment testing by employers has become more common in recent times. In most cases, the testing is conducted by outside vendors offering these types of services to multiple groups of employers. While these tests seem to be a good idea to most employers, it is important to make sure they pass muster with the various administrative agencies at the federal and state level.

In a recent example of a test gone wrong, the OFCCP took issue with an employer's written testing program. The test had an adverse impact on minority applicants and failed to meet the EEOC's Uniform Guidelines on Employee Selection Procedures.  In this recent case, the OFCCP reached a $550,000 settlement with the employer. Click here for the OFCCP press release.

While having the OFCCP involved might suggest this is only an issue for written tests and government contractors, don't be misled. This is only an OFCCP issue because the problem was uncovered by an OFCCP audit of the employer. The EEOC's requirements in this area apply to all employers. In addition, the selection guidelines apply to all types of pre-employment testing, ranging from written testing to skills testing to strength-and-agility testing.

If your company conducts these types of tests, it is important to ensure there is not an adverse impact on a specific class of individuals. If there is an adverse impact, the employer can still defend the testing measure if the employer can show the test is an accurate predictor of a candidate's ability to perform a job. This is where      Continue Reading...

Foreign Students and Work Authorization
By: Donald Berner

One of the more confusing work authorization scenarios I see clients dealing with relates to when a foreign student is authorized to work in the United States.  The default rule is that a student in the U.S. with an F visa (the typical one used by students) is not permitted to work.  Students typically gain the ability to work in limited ways.  A student may gain work authorization via a curricular practical training program (CPT) or via an optional practical training program (OPT).  These programs differ quite a bit.  A student working via CPT will have the ability to work for a limited period of time and for a specific employer as part of a school sponsored training program.  A student working via OPT will have an employment authorization document (EAD) which will allow a much longer period of employment with no specific employer restrictions.  If your company employs a foreign student, make sure you carefully evaluate whether the individual has proper work authorization documents to work for your company and ensure you carefully note the expiration of that work authorization.   

EEOC Says High School Diploma Requirement May Violate ADA
By: Boyd Byers

About a month from now high school seniors will be donning funny looking caps and gowns and parading across stages to receive their hard-earned diplomas.  But employers who require a high school diploma or GED as a condition of employment need to make sure this requirement is job-related and consistent with business necessity, and that it doesn't screen out individuals who cannot obtain a diploma because of a learning disability.         

The Equal Employment Opportunity Commission recently published new guidance on whether an employer's requirement that a job applicant have a high school diploma may violate the Americans with Disabilities Act.  The guidance is in response to an informal discussion letter issued by the EEOC last November that created significant commentary and conjecture. 

The guidance explains that requiring a high school diploma for a position is not illegal.  Employers may continue to have high school diploma requirements and, in the vast majority of cases, they will not have to make exceptions to them. However, according to the EEOC, if an applicant tells an employer she cannot meet this requirement because of a disability, an employer may have to allow her to demonstrate the ability to do the job in some other way. This may include considering work experience in the same or similar jobs, or allowing her to demonstrate performance of the job’s essential functions.

The guidance clarifies that the ADA only protects someone whose disability makes it impossible for him to get a diploma. It would not protect someone who simply decided not to get a high school diploma.  The employer can require      Continue Reading...

Applicants, Employers, and Social Media: The Plot Thickens
By: Donald Berner

As most of you are probably aware, social media policies and practices established by employers have been the focus of the National Labor Relations Board (NLRB).  It seems, though, that some employer interview and hiring practices have drawn quite a bit of negative attention as of late from the mainstream media and various politicians across the country.  At the end of March a series of news media stories received national attention (and some news talk show debate airtime).  These stories were focused on employers requiring applicants to provide them with their social media login/password information so the interviewer could review the applicant's non-public profile information.  Another twist of the same general concept is for the applicant to be required to log in and allow the interviewer the opportunity to review that private information on the spot.

While not illegal as of yet, this tactic takes the review of an applicant's social media presence to a whole new level.  There are a number of risks associated with reviewing social media sites (even if the information is public) as part of the hiring process.  Employers may uncover information as part of the social media inquiry that it doesn't really want to know or consider in the hiring process.  Taking this inquiry to the level of requiring an applicant to open up private information to the interviewer adds on a layer of additional risk.  Each employer has to balance the risks of reviewing the social media information with the value of the information and its relevance to      Continue Reading...

Be My Valentine and Dump That I-9
By: Donald Berner

So first off, there is almost no connection between the love we might express on Valentine's Day and I-9 forms.  If any of you say I-9 form and love in the same breath, your sanity will surely be questioned; however, if we talk about throwing out old I-9 forms, we might be able to insert I-9 and love into the same sentence.  If you are not destroying I-9 forms for former employees, it is time to consider your I-9 retention practices.

As all of you know, employers are required to complete and maintain I-9 forms and supporting documents for each employee.  In conducting audits and visiting with HR teams, the issue of maintaining (retaining I-9 forms) is an area where employers tend to err.  It seems that a lot of employers maintain I-9 forms forever when there is no requirement to do so.  The I-9 retention rules are fairly straight forward.  An employer is required to retain an I-9 form for any current employee.  Employers are also required to maintain I-9 forms for a minimum of three years.  Once the employee terminates employment with the company, the I-9 must be retained for at least one year following termination.  While a little convoluted, the rule is fairly simple.  The I-9 must be retained for at least three years and for at least one year following an employee's termination of employment.  Here are a couple of examples to help clarify:

Employee 1 starts work on August 1, 2007 and remains employed today.  Since the employee is a current employee we continue to retain the      Continue Reading...

Watch Out For HR Ninjas
By: Boyd Byers

Are Rockstars and Ninjas running rampant in your workplace? More and more companies are dumping their mundane old job titles for creative new monikers like these, according to an analysis of business card trends.    

The most-popular new names include Ninja, Rockstar, Geek, Guru, and Wrangler. These and other inventive job titles, like Czar, Kahuna, and Mad Scientist, let workers bring some personality and fun to their jobs.  The trend started with technology companies and is gaining traction in a wide range of industries. But don't expect the demise of traditional job titles at most companies.

From the perspective of an Employment Law Guru (hey, that sounds kind of cool), there's nothing inherently wrong with colorful job titles, if that approach is compatible with your company culture and customer base. It might even give you a leg up in recruiting for competitive creative or technology jobs. 

But use common sense and don't get carried away. Job titles (formal or informal) that convey sexist, racist, or religious overtones should be avoided. So no Wenches, Popes, or Nazis (remember the Soup Nazi from Seinfeld?). Even titles like Ninja or Kahuna could be problematic if directed at specific employees because of their race, ancestry, or national origin. Also stay clear of offensive business cards, such as the ones ordered by Facebook founder Mark Zuckerberg early in his career, which read, "I'm CEO, bitch." As any HR Rockstar knows, what some employees find clever or funny can be offensive to others.

The End of the Road for FY2012 H-1B Filings
By: Donald Berner

The USCIS announced that the H-1B cap for fiscal year 2012 was reached last week.  This means no more H-1B visas will be available for employer use until October 1, 2012, when fiscal year 2013 visas become available.  The filing period for the 2013 fiscal year H-1B  visas will begin on April 1, 2012.  In the meantime, employers that had been considering the use of an H-1B visa should begin evaluating other immigration options.

These numbers may signal a rebound in hiring of the professional employees this visa category represents.  Last year the H-1B cap was not reached at the end of January.  This upswing in hiring of H-1B visa candidates is a heads up to those planning to hire H-1B candidates next year.  If your company has a need to hire H-1B candidates, it is advisable to be prepared to take action on those hiring plans with an H-1B application filing in April 2012.  Prior to the economic downturn, the norm was for all H-1B slots for a fiscal year to be allotted during the initial wave of filings in April.  We may be returning to that type of environment for H-1B visa applications.    

For the text of the USCIS press release click here.   

State Tech Chief Resigns After Getting Third Degree About His Degree
By: Boyd Byers

Jim Mann, recently hired as chief information technology officer for the Kansas executive branch, resigned earlier this week.  Mann stepped down a day after questions arose about his academic degree, and hours after Governor Brownback acknowledged that his staff had not thoroughly vetted Mann's educational background.  Mann's on-line resume says he holds a bachelor's of business administration degree from the University of Devonshire.  But this institution is not accredited and in fact has no degree-granting authority.  In other words, it's what some might call a "diploma mill."

High-profile cases like this are old hat.  It's been ten years since Notre Dame hired George O'Leary to be its new head football coach--and then fired him five days later when a reporter discovered he had lied on his resume about obtaining a master's degree from a non-existent university and earning football letters at a school where he was never even on the team.  Six years ago Radio Shack CEO David Edmondson resigned after a newspaper reported that he had not actually earned degrees he claimed on his resume.  (But he still cashed in on $1 million in severance pay on his way out the door.) 

Stories like this should give you pause to think about your applicant screening and background checking processes. To review steps you can take to detect misrepresentations before applicants are hired, and minimize liability when you fire an employee if you later discover he or she was dishonest or not forthcoming during the application process, check out this prior post:  The Great Imposter 

More Bad News About I-9's
By: Donald Berner

Immigration and Customs Enforcement (ICE) is continuing to issue Notices of Inspection (NOI) to employers across the country.  These ICE NOIs require employers to provide I-9 forms and various payroll related information to ICE.  The increase in these type of inspections being conducted by ICE is significant.  Over the last three to four years, the number of inspections has more than tripled.  For employers getting a NOI, it can be a costly experience.  While some of the inspections may be being conducted on a random basis, the more likely sceenario is that ICE has targeted the employer based on tips, complaints, or leads developed from a variety of sources. 

Employers should respond carefully upon receiving an NOI from ICE.  The real preventative medicine for employers is to conduct an audit of your existing I-9 documents as well as review your I-9 completion practices to ensure the documentation is all in order.  In addition, employers should consider the pros and cons of signing up to participate in the E-Verify system as part of the employer's comprehensive compliance strategy.

Application Mistakes Revisited
By: Boyd Byers

A couple of weeks ago I wrote about humorous application mistakes reported by human resources professionals.  After seeing my blog post, one reader shared a story that's too good to keep to myself. 

It reminded me of when I was in college and I worked at a bar.  The application asked for an emergency contact number.  One lady wrote “911.”

Thanks for sharing.  It makes me wonder, however, what this applicant wrote in the line titled "sex."

E-Verify For Everyone?
By: Donald Berner

Last week a new bill made its way out of the House Judiciary Committee in Washington and now is in a position to come before the House as a whole.  The bill, titled the Legal Workforce Act of 2011 (HR 2885), would require all employers to participate in the E-Verify system.  Currently, participation is mandatory only for certain federal contractors and employers located in states with mandatory E-Verify state law provisions.  While the bill still has a long journey ahead of it before becoming a law, it is something employers should be considering as they decide whether to voluntarily opt in to using the E-Verify system.  As usual, the political rhetoric in Washington surrounding immigration-related topics is heated.  The difference this go-around is the weak economy and the commentary about ridding the workforce of illegal aliens being a jobs package for unemployed Americans.  Stay tuned as the debate moves towards the full House in the near future.  To catch a glimpse of the political commentary click here for the press release issued by the bill's sponsor. 

Listing Your Dog as A Reference, and Other Common Résumé Mistakes
By: Boyd Byers

Nearly half of human resources managers spend an average of less than one minute reviewing a job application, according to a recent survey by CareerBuilder.com.  So it's not surprising that job seekers include information in their applications and résumés to attract a potential employer's attention.  But many of these attempts to create a positive impression fall flat.  Here are some of the most unusual application gaffes reported by human resources and hiring managers responding to the survey:

- Listed her dog as a reference. 

- Gave contact email address of "shakinmybootie." 

- Listed the ability to do the "moonwalk" as a special skill. 

- Husband and wife, who were looking to share the job, submitted a co-written poem. 

- Stated he would be a "good asset to the company" ... but failed to include the "et" in the word "asset."

- Shipped a lemon with resume, saying "I am not a lemon."

- Insisted the company pay him to interview with them, because his time was valuable.

To see the entire list and read more about the survey, click here.

Do you have an unusual application story you'd like to share?  If so, contact Boyd 

Some Thoughts on I-9 Compliance
By: Donald Berner

The I-9 form has become a routine part of the hiring process.  Most employers don't give much thought to the I-9 once the hiring process is completed.  The form is filled out and promptly tossed into the I-9 file, never to be seen again (unless the government visits).  If this describes your company, you might consider changing that practice.  It is a good idea to conduct an audit of your own I-9 documents on a periodic basis to ensure your company is in compliance.   The penalty for failing to properly comply with the I-9 requirements ranges anywhere from $110 to $1,100 per violation.  This can add up extremely fast.  Here are a few things to consider as you review your company's I-9 documents:

1.  Did the employee completely fill out the top section of the form?  Make sure each line is completed and that the employee signed and dated the document.

2.  Are the entries in the document section fully completed?  Make sure each of the lines is completed to the fullest extent possible.  One common error in this part of the I-9 is the failure to list the issuing authority for the document.

3.  Are you properly utilizing List A, B, and C documents?  Remember -- List A is enough by itself.  If you use documents from List B or List C, they are used as a package.  Your form should either have one document in List A or a document in List B and C together. 

4.  Consistency check the documents against the      Continue Reading...

The Great Imposter
By: Boyd Byers
Barry Bremen, known to sports fans as The Great Imposter, died on June 30. While the name may not be familiar, you may remember his gate-crashing pranks during the late 1970s and 1980s.
Bremen first made headlines in 1979 when he donned a Kansas City Kings uniform, snuck onto the floor, and participated in pre-game warm-ups at the NBA All-Star Game. Later that year, clad in a New York Yankees uniform, he got on the field and shagged flies for half an hour at the Major League Baseball All-Star game. He nearly made it into the American League team photo before he was caught. 
Bremen gained even more notoriety when he posed as a Dallas Cowboys cheerleader. But perhaps his most-famous stunt was crashing the 1985 Emmy Awards and going on stage to accept the Best Supporting Actress award for Hill Street Blues’ Betty Thomas, who was late getting out of her seat.
Bremen’s other famous exploits included: sneaking on the course and playing practice rounds at three U.S. Open golf tournaments; dressing as an umpire and participating in the pre-game umpire meeting at the 1980 World Series; and posing as a referee at the 1980 Super Bowl. His fun-loving stunts garnered him an appearance on “The Tonight Show” and a profile in People magazine. 
It was obvious Bremen just wanted to have some      Continue Reading...
EEOC Discusses Use of Arrest and Conviction Records
By: Donald Berner

The EEOC recently held a public meeting to discuss the issue of employer usage of arrest and conviction records in making employment decisions.  This meeting may signal a renewed interest in the issue on the part of the EEOC.  With the easy access to information via the internet, the use of criminal background checks is more prevalent which may be the motivation behind the EEOC's public discussion.  

The general EEOC position is that the use of arrest records and/or convictions to take an adverse action without further consideration of the circumstances involved is inappropriate.  In situations where the arrest/conviction is related to activity tied to the job, the use of an arrest record as the basis for adverse action can be justified by an employer.  Stay tuned for further EEOC activity on this topic.

To see the press release regarding the public meeting click here.  For a summary of the EEOC's existing policy guidance on the use of arrest records click here.

I-9 Audit Sweep Set to Begin
By: Donald Berner

ICE (Immigration and Customs Enforcement) recently announced the start of another large scale effort to conduct I-9 audits across the country.  The most recent announcement indicated ICE would conduct over 1,000 audits in the later part of this summer which is similar to a large wave of audits conducted in February of this year.  This most recent wave signals a continuation of the strong commitment made by President Obama to ensure employers were in compliance with the I-9 requirements.  Employers should expect to see an increasing number of these types of audits as ICE has established a new centralized inspection center to allow for the processing of higher volumes of audits than in the past.  If you haven't done so lately, now would be a good time to self-audit your own I-9 collection to best position your company should you end up on the list of lucky employers being audited.

More Bad Job Applicants
By: Boyd Byers

Later this month the flick Bad Teacher, starring Cameron Diaz, will hit movie screens across the country.  And who can forget Billy Bob Thornton's turn as the title character in Bad Santa, the screwball black comedy produced by the Coen brothers?  Perhaps continuing a trend, potential scripts for Bad Job Applicant are practically writing themselves.

A couple of months ago I wrote about outrageous interview gaffes made by job applicants, as reported by hiring managers in a national survey.  (Click here to read the original post.)  This week one of my favorite guilty pleasure websites, HR Strange But True!, told the real-life tales of several other odd interview experiences.  Click here to read about the intoxicated interviewee, the job seeker with a fishy story about her past jobs, and the overly affectionate applicant

Another Way to Not Get A Job
By: Boyd Byers

A few weeks ago I discussed a survey in which hiring managers were asked about the most-common, and the most-outrageous, mistakes made by job applicants during interviews.  (Click here to read the original post.)

One reader shared the following story about a job seeker who lost out on a job because of pre-employment misconduct following his interview.  The applicant was professional and well-behaved during the interview process.  But things went south after he received a conditional offer of employment (pursuant to the ADA) and was sent to undergo an off-site medical evaluation (as all persons being hired for this position were required to do).  Upon arrival, the job seeker became belligerent and threatening to the medical staff.  Things were so bad, in fact, that the doctor refused to examine him, instructed him to leave the premises, and called the police.  Needless to say, the conditional offer of employment was withdrawn.

While an extreme example, this story shows how some applicants may be able to hide their true stripes during the formal interview process.  So you need to make sure your hiring process is designed to weed out persons who would not be a good fit for your organization.  I know of several employers who swear that adding one simple step to the applicant screening process has worked wonders for them.  What do they do?  After a job interview, HR or the hiring manager solicits information from the receptionist to get her assessment of the candidate.  If the applicant was rude, disrespectful, condescending, or otherwise unpleasant to the receptionist, then it's a safe bet the applicant is      Continue Reading...

How To Not Get A Job
By: Boyd Byers

What’s the most-outrageous mistake made by a job applicant you’ve interviewed?  Over 2,400 hiring managers were asked that question in a recent nationwide CareerBuilder survey.  Here are some of my favorite responses:

·         Wore a hat that said “Take this job and shove it.”
·         Threw a beer can in the trash can outside the reception office.
·         Ate all the candy in the candy bowl while answering questions. 
Hiring managers were also asked about the most-common mistakes candidates make in job interviews. Number one on the list?  Answering cell phone calls or texting during the interview.  This was followed closely by dressing inappropriately, acting disinterested, and appearing arrogant.
Do you have any unusual interview experiences you want to share with our Kansas Employment Law Blog readers?  If so, send me an email.     
Read the entire report on CareerBuilder.com.
Learning A Lesson -- H-1B Prevailing Wage Violation
By: Donald Berner

The Department of Labor (DOL) recently penalized the Prince George's County school system for its failure to properly pay H-1B workers.  In the case of an H-1B worker, the employer must pay the employee at least the prevailing wage amount established for the position.  The prevailing wage system is designed to ensure that foreign labor is not used to lower the U.S. wage base in a given occupation.  While the announcement is unclear, the problematic issue for the school is likely to have been the requirement the H-1B worker pay some or all of the fees for the preparation of the H-1B application packages. 

Generally speaking, it can be permissible for the employer to require an employee to pay the legal fees associated with any H-1B filing so long as these costs do not effectively lower the employee's wage rate below the prevailing wage rate.  For purposes of compliance, H-1B employers should view the prevailing wage as the minimum wage for an H-1B employee.  In addition to the prevailing wage floor, employers with H-1B employees should also be mindful of how the H-1B employee's compensation compares to his/her peers in the job classification.  Dropping below one of these floors can create a backpay liability issue for an H-1B employer.  In addition to the attorneys' fees concerns, there is also a government filing fee cost associated with the H-1B program.  While a payment of the attorneys' fees amount can be permissible, employers are not permitted to require the employee to pay the government filing fees associated with the H-1B application process.  

For the      Continue Reading...

E-Verify Now Provides For Limited Self-Checking
By: Donald Berner

A new pilot program has been added to the E-Verify system to allow individuals to check themselves and correct any problems that might prevent them from being verified.  This feature is currently only available to individuals in Arizona, Colorado, the District of Columbia, Idaho, Mississippi, and Virginia.  It is expected this self-check feature will be expanded and rolled out to individuals living in other states.  The addition of this capability seems to be an attempt to remedy the concern that the E-Verify system is prone to error and may cost authorized workers a job opportunity as workers will be able to check their own data and correct any problems prior to applying for employment.  

What does this mean for Kansas employers?  In the short-term, not much.  In the long-term, this appears to be one more step down the path to an eventual national requirement for all employers to use the E-Verify system.  One of the historical concerns with E-Verify is the potential error rate.  With the implementation of state laws in several states mandating use of E-Verify and the federal contractor requirement, the scope of participating employers has grown considerably.  This self-check option is a great way to address any concerns about employee fear of errors in the system.  When it is all said and done, don't be surprised if you start to hear talk of all employers being required to use E-Verify as part of the I-9 process. 

Employment References
By: Donald Berner

What do you do when your former employee uses your company as an employment reference?  Is it your company policy to say nothing?  Or is there no policy in existence?  It isn't very helpful for your former employees if you say nothing.  And in most cases, you would like to provide a reference to help them along.  It becomes a bit more problematic when the reference request is for a former employee that had issues.  If you provide a negative reference, you might find yourself the target of a defamation or retaliation claim.  It is always a good idea to have a consistent approach to providing references and to assist with that goal -- having a policy is ideal.  In Kansas, there is a statute providing immunity to employers who provide references within the scope of the statute.  A policy centralizing employment references to the HR group and tracking the terms of the statute is one of the better ways to ensure your company is following a consistent approach as well as avoiding potential litigation traps.  The provisions of the reference statute can be found here.

The Cost of A Bad Hire
By: Boyd Byers

Over three-fourths of companies reported making a bad hire that adversely affected their business in 2010, according to a new survey by careerbuilder.com.  Twenty-one percent said one bad hire cost their company more than $50,000 last year, and ten percent said it cost them between $25,000 and $50,000.  Bad hires can be costly because of lost time and money to recruit and train a replacement, lower productivity, and legal issues.  The most common reason for making a bad hire?  The need to fill a job quickly.  For a more-detailed look at why bad hires create chaos, and the need to promptly cut your losses, click here

I-9 Final Rule Issued
By: Donald Berner

The Department of Homeland Security (DHS) recently issued a final rule making a number of minor revisions to the regulations governing the I-9 process used by employers to document newly hired employees' eligibility to work in the United States.  The issuance of the final rule incorporates with some slight modifications the provisions of an interim rule issued in 2006.  The highlights are as follows:

1.  A language clarification was added to make clear that employers have three business days to complete the I-9 process as opposed to three calendar days.

2.  The interim rule allowed employers to use either a paper or electronic retention system and the the final rules allows paper, electronic, or some combination of a paper and electronic system.

3.  The final rule allows employers to maintain a separate I-9 file or to store I-9 documents within the files containing the employees' other personnel documents.

4.  The final rule relaxed the audit trail requirements for electronic storage systems requiring only an audit trail for record creation, modification, or deletion.  In essence, a viewing of the I-9 document does not need to be recorded by the electronic storage system.

5.  The interim rule required employers to provide employees with a printed receipt showing the record each time it is modified.  This requirement was relaxed to allow employers to only provide a printed receipt upon the request of an employee.

While the final rule made a few other changes, the ones listed above are the high points.  For those interested in reading the final rule, it can be found      Continue Reading...

Questions about Asking Questions
By: Boyd Byers

What’s the most unusual question you’ve ever been asked during a job interview? During a pre-NFL-draft interview last week, Miami Dolphins general manager Jeff Ireland asked former Oklahoma State receiver Dez Bryant, “Is your mother a prostitute?” 

"No, my mom is not a prostitute,” Bryant told a reporter. “I got mad -- really mad -- but I didn't show it.”  
Ireland’s interview question was the hottest topic on ESPN, sports talk radio, and sports blogs for several days. Then stories began to surface about inappropriate interview questions directed at other top draft prospects. Standout defensive tackle Gerald McCoy was asked, “Do you play in a G-string or a jock strap?” Safety Myron Rolle, who skipped his senior year at Florida State to study at Oxford on a Rhodes scholarship, was questioned about what it felt like to desert his team. Toby Gerhart, who was second in the Heisman trophy voting, was asked if being a white running back made him feel “entitled.”    
Outspoken Kyle Turley, a former NFL lineman, offered his two cents about Ireland’s interview question to Bryant, “I don’t care who you are or who you’re talking to – that kind of question usually gets your [expletive] teeth kicked in.” And, in the real world, questions about G-strings and feelings of racial entitlement can get you sued.
While NFL executives may not live in the real world, you do. Make      Continue Reading...

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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