If you’ve grown tired of the self-imposed language of workers across the country, then the BBC is here to help.  The BBC has compiled a "50 office-speak phrases you love to hate" list that includes such linguistic gems as "conversate" and "granularity." 

Sadly, my own personal favorite does not appear on the list. I learned from a friend who worked as a store manager for a national retailer that his company does not have "problems" or "challenges" anymore.  Instead, everything is an "opportunity."  After learning this, naturally, when I got pulled over for speeding on my way to work, I informed my wife that "I had an opportunity on my way to work this morning."  I don’t think she saw it that way.

[Editor’s Note:  Our friend and blogger extraordinaire, John Phillips, at The Word on Employment Law, posts the definitions from the Dictionary of Corporate Bull**!@.  I happen to have the Dictionary as a daily desk calendar and I can personally attest that the definitions give us a daily laugh.  As a sampler, and not to spoil any of John’s fun, but today’s definition is "nastygram:  an e-mail that is punitive in tone; a petty and irritating bitch-slap, sent with the ulterior motive of defending the author’s ridiculously small territory and authority and venting otherwise unexpressed frustration and anger; frequently sent by middle managers who must daily fight off the reality of their own insignificance; a common tool of the micromanager."  md.]

Disparate Impact Claim

A Labor Department news release states an evaluation in 2005 and 2006 by the Office of Federal Contract Compliance Programs (OFCCP) found the Salisbury-based company failed to comply with federal employment laws at its poultry processing plants in Rockingham, N.C., Dillon, S.C., and Monterey, Tenn. (The OFCCP has jurisdiction because Perdue supplies poultry under a federal contract to the U.S. Department of Agriculture.)

The settlement agreement will require Perdue to pay $800,000 in back wages and interest to 750 women and minorities who were not hired during the relevant time period.  The company also will make employment offers to some of those who were not hired but who are still interested in employment with Perdue.  In those cases, the employees will receive retroactive company service dates for purposes of benefits and promotion rights. 

Documentation Regrets

Perdue officials denied the allegations on the basis that many applicants were unqualified for employment or withdrew from consideration for employment.  They stated that the company agreed to a settlement only to avoid protracted litigation, according to the company. The VP of HR said in a company statement:

Perdue is committed to treating all job applicants fairly. We regret we did not more carefully document our hiring process for production associates, which led to these concerns by the OFCCP and, ultimately, to this settlement.

Perdue has implemented new procedures to ensure it retains all relevant documentation of its selection processes and is also conducting training of its human resources staff to assure appropriate implementation of Perdue’s hiring and employment practices, according to the company statement.

Interviewing Best Practices

Interviewing is one of the most neglected areas in employment law.  When I teach seminars on lawful interviewing, I will inevitably see faces filled with shock and despair as they realize just how many of the best practices have not been implemented in their organization. 

Documentation is key in hiring.  If you keep notes and records only on the people you hired, you will have nothing to refer to in a failure-to-hire claim.  And let’s be honest, the ones you didn’t hire are likely the ones who were the least memorable.  Can you remember candidates you interviewed and rejected in 2005 and 2006? 

Without an established and consistent documentation and record-retention policy for the hiring policy, a failure-to-hire claim can be nearly impossible to defend.  Just ask Perdue.

Source:  Delaware News Journal, Gwenn Garland

Delaware Contractors Association, June 25

William W. Bowser and Molly DiBianca will be presenting a breakfast seminar to the Delaware Contractors Association (DCA) on June 25, 2008 on Hot Topics In Employment Law.  The recent amendment to the Family Medical Leave Act, the National Defense Authorization Act (NDAA), which imposes new leave requirements for employees with servicemembers in the family who are called to active duty or who are returning from active duty and who require medical care.  The recent (and sudden) passage of the Construction Industry Independent Contract Act through the Delaware House of Representatives will also surely be on the agenda.

Developing Your Employee Handbook, October 23 & 30

Molly DiBianca will be presenting this seminar, which is sponsored by Lyons Companies Insurance, twice in October.  The first seminar is scheduled for October 23, 2008, from 1-3 p.m. and will be held in Georgetown, Delaware. The second is set for October 30, 2008, from 9 - 11 a.m. and will be hosted by Young Conaway Stargatt and Taylor in the firm’s Wilmington, Delaware offices.  The seminar is free to clients of Lyons Companies but limited spaces are available for non-clients.  Just be sure to contact Molly DiBianca or Lyons Companies representative Jenn Miller early because Lyons’ seminars are always well attended and fill up quickly. 

These statistics beg the questions, why does this happen and how can it be prevented?

Of course, I wouldn’t pretend to offer answers to either question–both surely will be the topic of countless case studies and research projects for years to come.  But here’s what I will offer–what I believe to be the most fundamental necessity that any organization must provide in order to retain great employees and to make good employees become great ones–honesty.

You don’t hire employees because you think they’re particularly dopey.  You hire employees who you believe are the best and brightest, the smartest, and most innovative candidates out there.

Just don’t forget it once they start working for you.

Employees are not fooled by empty promises.  So don’t pretend that you are going to fix X, Y, or Z problem if you know you’ll never take any tangible steps in keeping that promise.  It’s very easy to become jaded when you feel that you’ve been duped by your employer.  Think of the parent who answers every request with "maybe," or "We’ll see." 

Everyone knows that what the parent really is saying is "N-O."  So be a straight shooter.  Give employees a valuable answer to their questions and, whenever possible, explain why.  Employees in the know are more likely to be sympathetic to the choices of the organization even if it doesn’t give them the result they prefer.

In these difficult economic times, it is not uncommon for an employer to have serious concerns about the financial health of the organization.  So, if the company’s annual summer picnic is cut to save money, don’t feed employees a bogus story about the reasons for the decision.  It won’t be good enough.  They’ll resent you for canceling the party and they’ll interpret the decision as a negative reflection of management’s lack of understanding or appreciation of employees.  They’ll secretly suspect that management is trying to give them a not-so-subtle hint that they are not doing a good job.

Instead, be honest.  Explain that the party has been canceled because it is a costly event and, in difficult times, the company has the duty to protect the overall fiscal health of the company and can’t risk long-term security in the name of the summer picnic.  Offer specific examples of the cost-benefit analysis you used to reach the decision.  If you spent some time and energy to reach the decision, then you’ll be able to articulate that to others. 

And sometimes, that’s all it takes.  A little honesty.

Kevin O’Keefe at Real Lawyers Have Blogs posts about an article from Scientific American magazine that explores the therapeutic benefits of blogging.  From the article, written by Jessica Wapner:

Self-medication may be the reason the blogosphere has taken off. Scientists (and writers) have long known about the therapeutic benefits of writing about personal experiences, thoughts and feelings. But besides serving as a stress-coping mechanism, expressive writing produces many physiological benefits. Research shows that it improves memory and sleep, boosts immune cell activity and reduces viral load in AIDS patients, and even speeds healing after surgery.

…..

Scientists now hope to explore the neurological underpinnings at play, especially considering the explosion of blogs. According to Alice Flaherty, a neuroscientist at Harvard University and Massachusetts General Hospital, the placebo theory of suffering is one window through which to view blogging. As social creatures, humans have a range of pain-related behaviors, such as complaining, which acts as a “placebo for getting satisfied,” Flaherty says. Blogging about stressful experiences might work similarly.

The "self-help" implications of blogging seems to be a powerful incentive for Employee Assistance Programs (EAPs) to consider adopting blogs into their repertoires.  Of course, employers should decide in advance whether employees will be permitted to blog about work and implement a blogging policy if one doesn’t already exist.

17.4% of children aged 0-4 in the U.S. with an employed mother are cared for full-time by their fathers. As compared to 11% in the U.K.

The Family Medical Leave Act ("FMLA") provides for unpaid leave to care for a newborn or a newly placed adopted child.  The act is gender-neutral and the availability of leave is unrelated to status as "mommy" or "daddy."  But what about employers with less than 50 employees, to which the FMLA does not apply?  Well, dads, good luck.

Paternity leave policies, which offer paid leave in varying amounts to fathers of newborns, are uncommon in any size company. And closer to rare in small businesses, which are less likely to be able to afford paid leave than their big business counterparts. 

If your employer does not offer paid paternity leave, you may be left with accrued vacation or personal time as the only realistic alternative.  And those will likely be very short.  Certainly not close to the 12 weeks of maternity leave that many employers offer.

A 2007 study from recruitment firm Adecco USA found that 59% of U.S. working dads would not take unpaid paternity leave if their employer offered it.  The most commonly cited reason was cost.  Apparently it would put too big a dent in household budget.  Other frequently cited reasons included the fear that it would damage their careers, being too busy to take time off, or the concern that they’re too indispensible at work.

Well, there’s always flextime.  But given the difficulty women face as they try to get more employers to join the alternative-schedule bandwagon, men may be looking at an uphill battle with this option, too.

No matter whether you’re a dad who stays at home or a dad who stays at work, happy fathers’ day to all of the hard-working dads!

Given the recent movement against Jerks at Work, we get more and more requests from clients for a Respectful Workplace policy for their employee manuals.  These types of policies have significant flexibility depending on the level of the organization’s commitment to eradicating jerks in the workplace. 

Here are some pointers for crafting a Respectful Workplace Policy:

Start Here.

The golden rule for these types of policies is to start with a hard look at the values, both written and unwritten, of your organization.  The worst thing to do is to craft a policy that is totally out of line with your company’s everyday practices.

Don’t overpromise and don’t overhype the company’s commitment to a respectful workplace.  Employees aren’t fooled that easily and they’ll resent you for thinking otherwise.  If you implement a comprehensive policy, be prepared to stand by it and hold employees and management accountable.

Be Specific. 

As easy as it is to create policies in the abstract, a policy needs specifics in order to be effective or enforceable. The word, "respectful" is a start but use words with more concrete meanings.  Better yet, give examples of what is and is not considered respectful behavior. 

As a matter of course, all such policies should include anti-retaliation language that assures employees that there will be no retaliation for reporting incidents that the employee believes are in violation of the policy.

A Respectful Workplace policy often can be incorporated into an anti-harassment policy.  But if you choose to combine the two, be sure to differentiate one from the other.  In other words, harassment is illegal and will not be tolerated.  Disrespect, on the other hand, while not illegal, is destructive to the overall health of the organization and, therefore, will not be tolerated.  Be sure to separate the two.

Carry a Stick. 

Policies of any type are useless unless they include an enforcement mechanism.  Spell out what consequences there are for violations of the policy. And don’t limit yourself to disciplinary consequences.  It’s a good idea to identify the social consequences that behavior like gossiping, making snide remarks, and purposefully excluding coworkers can have on the team as a whole.

Make it a point to put responsibility on everyone with mandatory reporting.  If one coworker sees another gossiping or otherwise undermining another, make it their responsibility to report the conduct–either by going to HR or management, or by "calling out" the gossiper directly. 

The three speakers include Ann Ivey, of Anna Ivey Consulting, a former lawyer and dean of admissions at a top-ten law school, Ivey now focuses on admissions consulting. 

Elizabeth Kennard is a specialist for Starbucks’ Emerging Workforce Center of Excellence.  Kennard’s responsibilities include the development of workplace flexibility and multigenerational workforce strategies.

Dennis Loney is the Employment Practices Specialist at Recreational Equipment, Inc. (REI), working to ensure that the co-op’s practices are cutting-edge and aligned with its values. 

This is a very hot topic right now and seems to be infiltrating more and more areas of the business world.  You can register for teleconference through the following link:

Women’s Bureau (WB) - Flex Options Teleconference Call - Generation Y …. What Do They Really Want

Like Delaware, Pennsylvania’s version of the Construction Industry Independent Contractor Act proposes to penalizes employers in the commercial or residential building construction industry for intentionally evading certain state employment laws, such as the Minimum Wage Act, the Wage Payment and Collection Law, the Unemployment Compensation Law, and the Workers’ Compensation Act.

The law sanctions both intentional and negligent misclassifications of workers. An employer that intentionally misclassifies an employee will be charged with a third-degree felony and could face a fine of up to $15,000, imprisonment of up to three and a half years, or both, for a first offense.  Subsequent convictions could result in fines of up to $30,000,  imprisonment of up to seven years, or both.

Negligent misclassification carries penalties of up to $1,000 per offense, and possible administrative fines.

The Attorney General may also issue a stop-work order, which requires the employer to cease all business operations until Pennsylvania’s Secretary of Labor and Industry lifts the order or the employee is properly ­classified. In addition, the employer may be subject to a civil action for damages brought by an employee, or the employee’s union, claiming improper classification.

The Act also  includes an anti-retaliation provision. 

If the bill succeeds with the Pennsylvania Senate and is signed (as is expected) by Governor Rendell, the legislation could become effective as early as January 1, 2009.

[H/T Above the Law]

Cahokia Mayor, Frank Bergman, filed a workers’ compensation claim after taking a fall down the stairs while fulfilling his duties as a civil servant. This claim has resulted in payment to Mayor Bergman for more than $20,000. 

And what’s wrong with that, you ask?  Certainly, there is nothing un-leader-like about utilizing a government service for its intended purpose. 

But, the trouble here is, Mayor Bergman appears to be an unusually clumsy government official. This was his fourth workers’ comp claim since he began working for the small town. In all, the Mayor has collected no less than $145,000 in workers’ comp payouts since he came to work for local government in 1986.  The Mayor’s annual salary is $40,000. 

Well, maybe the Mayor can try to avoid walking under ladders and crossing paths with black cats in the future.  Surely, bad luck must be to blame for his ongoing series of unfortunate accidents. 

Source: Chicago Tribune:  Small-town mayor gets $20,000 for his 4th workers’ compensation claim

There are lots of litigation-related reasons for our insistence.  It is not uncommon to find that a former employee, now plaintiff, lied on their application.  The most cunning (read, most dangerous) plaintiffs, though, don’t lie about their employment history or education.  Instead, they just omit information.  They skip sections of the applications or, instead of filling in the form as requested, they simply write, "see resume, attached."  Therefore, they avoid the dirty habit of lying to their prospective employer while, at the same time, avoid having to explain those pesky incidents in their past like periods of unemployment, criminal histories or prior terminations. 

Our rigorous devotion to this honorable mission may explain why I take so much pleasure in the following story.  I know that I will get a lot of leverage out of it in future seminars when pressed for an example of what difference it makes whether or not there is a completed job application for each and every employee. 

The Workplace Prof Blog posted about an "unusual arbitration decision" (indeed!) in Quebec.  A unionized teacher was employed by the Commission Scolare de Montreal for several years without incident. 

Until, that was, it was discovered that the teacher had been convicted of manslaughter a number of years earlier.  Not surprisingly, the teacher was fired.  Not surprisingly, the teacher appealed the decision and his grievance went to arbitration. (Ok, maybe it’s a little surprising that he appealed). 

But here’s where it does get surprising–the arbitrator ruled in favor of the teacher. And, even more surprising, the Quebec Superior Court upheld the decision, as did the Court of Appeal.  An appeal to the Supreme Court of Canada may loom on the horizon. 

So, employers, we plead, we beg, we implore you, please make it a high-priority policy to ensure that you have each and every employee complete a job application and provide all of the information that it requires.  Do so, preferably, prior to the hiring decision.  But, if it’s too late for that, don’t despair.  Instead, start now by auditing your personnel files and having employees complete applications if they haven’t done so already. 

Really, if it means you wouldn’t have to continue to employ a convicted killer, wouldn’t it be worth the minimal effort?

[H/T: Workplace Prof Blog: Canadian Court Orders School to Rehire Convicted Killer]

Whereas an employer is in "compliance" with Title VII so long as it does not take adverse employment actions against employees because of a protected characteristic, the ADA requires that employers take affirmative steps towards assisting employees who are able to perform the functions of the job but who may need a reasonable accommodation to do the job as well as other employees without a disability.

But today, most savvy employers understand the tremendous value that the ADA provides to society as a whole and are able to appreciate the law, despite what can seem like a daunting set of requirements and prohibitions that the law entails.

Wal-Mart pharmacist, Glenda Allen, was shot during a robbery at her second job. Doctors estimated her chance of survival as very poor.  But survive she did.  Doctors concluded she may never walk again.  But walk she did.  In the end, she suffered permanent injury to her spinal cord and required the use of a cane as a result of an abnormal gait caused by the shooting.

When she sought to return to work, Wal-Mart fired her.

Wal-Mart’s position was that Allen could no longer do her job–with or without reasonable accommodations.  Allen was not paraplegic, though, she had at least limited mobility.

The litigation was unusually protracted–she initially filed suit in 1994.  After losing on summary judgment, Allen persisted until settling with the retail giant yesterday for $250,000. 

This case is a difficult one for me understand, at least strategically.  Granted, in 1994, the Americans With Disabilities Act (ADA), which governs accommodations employers must make for employees with disabilities, was hardly the piece of legislation that it is today. Barely 4 years old at the time, the ADA was not understood by many and feared by most. 

But today, some 14 years later, the amount of the settlement seems a pittance when compared to the legal fees that surely must have been incurred for more than a decade of litigation.  Additionally, Wal-Mart is sophisticated enough to appreciate the true value that the ADA provides to the business world by being able to offer equal employment to the disabled.  It strikes me as odd that the global mega-store would not have settled long ago, even if only to "save face" with the disabled community. 

[H/T Coral & Opal: Wal-Mart Coughs Up $250k in Pharmacy Discrimination Case]

A study from the University of New Hampshire found that approximately 20% of employees admitted to engaging in underhanded tactics in an effort to make their boss look bad.

Some did it as a way to seek revenge.  Making their supervisors appear to be incompetent, foolish, or oblivious is a way to inflict punishment.  Embarrassment is a technique employed by those who cannot "fight back" outright–or at least not without the risk that they’ll be disciplined or fired. 

Others were more calculated, using backstabbing as a way to get around a boss who might otherwise block them from career success. Goal-oriented retribution, you could say. 

To accomplish these "goals," employees reported to spreading false rumors and trying to sabotage their bosses’ work. 

The researchers concluded that abusive bosses were the targets of this conduct.  Not surprising, considering the suffering that a Jerk at Work can impose on a colleague, coworker, or direct report.

Related Posts:

You Know You’re a Bad Manager When . . .

Top 5 Lessons to Be Learned from the Jerk at Work

"No Jerks Allowed" . . . Catchy, Isn’t It?

Bullying Can Be Physical . . . But Torture?

Are Bullies Beating Up Your Employees’ Health?

The Cost of Bully Legislation

Bullying in the Workplace is Water Cooler Talk on Good Morning America

Source: Abusive bosses invite retribution, Study: Angry workers burn supervisors (The News & Observer)

But the new executive order isn’t the only new wrinkle in this quickly changing landscape. Several states (including Arizona, Mississippi, Idaho, Rhode Island, Minnesota and Oklahoma), have passed laws mandating use of the E-Verify system by some or all employer.  And there is legislation now pending in Congress that would require all U.S. employers to use the system to verify the employment eligibility of their employees.

The Government Accountability Office (GAO), which is the audit, evaluation and investigation arm of Congress, has just published a report, "Employment Verification:  Challenges Exist in Implementing a Mandatory Electronic Employment Verification System" on the issues presented by mandatory universal use of E-Verify. The report includes a very good overview of how E-Verify works and a helpful flow chart showing each step of the process.

The GAO says that a universal mandatory e-verification will present fiscal and practical challenges. The GAO points out that although 61,000 employers have registered to use E-Verify, only about half are actively using the system, and that there are approximately 7.4 million employers in the U.S. now. The U.S. Citizenship and Immigration Service (USCIS) estimates that mandatory E-Verify would result in about 63 million queries per year about newly hired employees. Both the Social Security Administration and the U.S. Citizenship and Immigration Service would have to buy more servers and hire more employees if E-Verify were mandated for all newly hired employees.

Mandatory E-Verify in its current form will not be a complete solution to the unauthorized immigration problem. It can help employers detect the use of fraudulent documents such as fake Social Security number cards, but it does not prevent use of genuine, but stolen, documents. My clients have reported an increase in incidents of apparent identity theft, which I think is probably an unintended consequence of the increased use of E-Verify.

Related Post:

Attention Government Contractors!! You Are Being Ordered to Use E-Verify!

Doe v.  C.A.R.S. Protection Plus, Inc.

After learning that there might be problems with her pregnancy, the plaintiff, “Doe,” shared the information with her employer. Tests showed severe deformities and, at her doctor’s recommendation, she had an abortion. On the day of the funeral ceremony, three days after the abortion, Doe was terminated.

The employer asserted that Doe failed to follow company policies with regard to her absence from work during her medical procedure and in the days following.   Doe presented evidence that her husband had called in to arrange the time off.

The employer had what the court called a “somewhat less than compassionate leave policy.” Employees were given no personal or sick leave. After one year on the job, employees were given five days’ paid vacation. Any time taken off during a work day was to be deducted from the employee’s vacation time or be unpaid. When employees were out sick, the employee or spouse had to call in on a daily basis.  But evidence was presented that showed not all employees were treated the same with respect to the daily call-in rule.

An Abortion Is a Protected Activity Under the Pregnancy Discrimination Act

The Pregnancy Discrimination Act (“PDA”) is an amendment to Title VII of the Civil Rights Act of 1964 and states that discrimination on the basis of “sex” includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The PDA does not require preferential treatment for pregnant employees but mandates that employers treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work.

Doe’s allegations did not make for a typical pregnancy-discrimination claim. She did not claim, for instance, that she was discriminated against because she was pregnancy or that she had been fired while on maternity leave. Instead, she argued that she was discharged because she underwent a surgical abortion. Whether or not protections generally afforded pregnant women under the PDA also extend to women who elect to terminate their pregnancies was an issue that had not been decided in the Third Circuit.

The EEOC has taken the position that it is an unlawful employment practice to fire a woman because she had an abortion.  This was also the position taken in an early decision in Delaware’s federal court.  Referencing both sources, the Third Circuit held that abortion is protected conduct under the PDA.

Evidence of Discriminatory Intent

The Court found enough evidence to refute the employer’s stated non-discriminatory reason for termination and permitted Doe’s claim to proceed to trial.  The evidence persuasive to the Court included: (1) daily call-in rule was not enforced with other employees; (2) another employee stated that Doe’s supervisor (who fired her) stated that Doe “didn’t want to take responsibility,” possibly in reference to her abortion; and (3) Doe was fired only three working days after the abortion.

Lessons for All Employers

Abortion does not often arise as part of a discrimination (or any other) claim against an employer because such a procedure is often kept private by the employee.  An employer cannot discriminate on the basis of conduct that it knows nothing about.  Also, the facts in this case, where the baby was wanted, and the employee had abortion for medical reasons, may be somewhat rare.

Nevertheless, the lessons from this case are applicable to many types of discrimination claims and provide a good reminder for employers. Simple changes to the employer’s policies and decision-making procedure would have resulted in a dramatically different outcome.

1. Make your leave policies reasonable. If humanity is not enough to persuade you on this point, then the risk of litigation should. It is clear that this employer’s draconian leave policy won no favors with the court, and certainly would not have won any points with a jury. Moreover, where leave policies  are so unreasonable that practically no one can abide by them, exceptions will be made routinely. When exceptions are made, subjectivity comes into play and it can be very difficult to defend why exceptions were made in some cases and not others.

2. Disseminate your policies, and enforce them consistently. Inconsistent treatment gets the employee past the first hurdle of any discrimination claim.

3. Never forget to take timing into account with any serious employment action. If you are considering taking an adverse employment action directly following some protected activity, which, in Delaware, now includes an abortion, think twice. Consider giving the employee a second chance and let some time elapse before taking action. Again, if benevolence does not lead you in the right direction here, know that many a discrimination case was moved onto trial because of suggestive timing.

Doe v.  C.A.R.S. Protection Plus, Inc., Nos. 06-3625, 06-4508 (3d Cir. May 20, 2008).

Proposed Bill Would Target Delaware Employers in the Construction Industry

"The Construction Industry Independent Contractors Act,” apparently is on the fast track for approval at the state legislative level.  Although its name indicates that it reaches construction-industry employers, the proposed bill has potential implications for all employers.

In short, the bill purports to penalize employers who improperly classify construction employees as independent contractors.

In essence, it provides that all construction industry workers are “deemed to be” employees unless:

1. the workers are “free from control or direction;”
2. the work is “outside” the employer’s usual business; and
3. the person is “customarily engaged in an independently established trade, occupation, profession, or business."

Employers Could Face Jail Time for Misclassification

An employer who fails to “properly classify” a person as an employee, even unwittingly, is subject to fines and imprisonment for up to 90 days. If done knowingly, the fine can be as much as $10,000 and the prison term as much as 6 months. In addition, the Secretary of Labor can impose administrative penalties, debar the employer from state projects, and even require the employer to cease operations.  And as if those measures aren’t enough, an individual who claims to be the victim of misclassification, or his or her union, can bring a civil action for damages, including a class action.

This draconian legislation, if enacted, would expose construction industry employers to financial ruin. Class action lawsuits are invited, and the language is constructed in such a way that virtually every person who works on a construction project would be viewed as an employee.

The Potential Consequences of the Independent Contractors Act

But why stop with construction employers? The same rationale would seem to be applicable generally to employers, so the next step would seem to be to expand the scope of the legislation to cover all employers. Interested businesses and business associations beware – this bill must be stopped!

The full text of the bill can be seen at the Delaware General Assembly website.

The plaintiff, Mauricia Grant, worked as a technical inspector in NASCAR’s second-tier Nationwide Series until she was fired in October 2007. She’d been with the organization since 2005, when she alleges the harassment and discrimination began. 

Her complaint, filed in federal court in New York, lists 23 specific instances of alleged sexual harassment and 34 specific instances of alleged gender and racial discrimination.

Despite an increasingly female fan base, NASCAR has long been a "man’s sport" with women’s involvement traditionally limited. 

Grant claims that she was harassed based on her race and her gender, as well as subject to a sexually hostile work environment.  In support of her racial discrimination claim, she alleges that she was referred to as "Nappy Headed Mo" and "Queen Sheba" and was told that she worked on "colored people time. 

One official, Grant alleges, routinely made references to the KKK.  And, while riding with coworkers at Talladega Speedway, she was told to duck as they passed by race fans because, one said, "I don’t want to start a riot when these fans see a black woman in my car."

As for the sexual harassment, she says that she was accused of being gay when she ignored advances of co-workers.  She also claims that those same co-workers exposed themselves to her and made graphic and lewd jokes.

Grant also alleges that she routinely complained about the conduct to multiple supervisors, who responded that she should just "deal with it," and dismissed the conduct as attributable to "former military guys" with a rough sense of humor.

Source:   ESPN: Ex-NASCAR worker alleges racial discrimination in lawsuit

On Friday, June 6, 2008, President Bush signed an executive order amending Executive Order 12989, which is entitled “Economy And Efficiency In Government Procurement Through Compliance With Certain Immigration And Naturalization Act Provisions.”  Sounds important, right? This is in fact very big news for government contractors, who must now revamp another part of their hiring process to ensure that they don’t lose their contracts.

The original Executive Order 12989, "Economy & Efficiency in Government Procurement Through Compliance with Certain Immigration & Naturalization Act Provisions", was signed by President Clinton on February 13, 1996.  It stated that if a government contractor violated the Immigration and Naturalization Act’s prohibition on hiring illegal or undocumented aliens, the contractor could be “debarred.”  Debarment means that the contractor loses its current government contract and is shut out from future contracts for the duration of the debarment period.

The amended E.O. 12989 goes a step further, requiring all government contractors to use the DHS electronic verification system (currently known as “E-Verify”)  to ensure that “all persons hired during the contract term by the contractor to perform employment duties within the United States” are authorized to work in the United States. This requirement apparently extends to all newly hired employees, not just employees hired to work on the government contract. In addition, the Executive Order requires the contractor to use an electronic verification system to verify the employment eligibility of “all persons assigned by the contractor to perform work in the United States.”

The Order instructs the Secretary of Homeland Security to “modify as necessary and appropriate the electronic employment eligibility verification system….” On June 9, 2008, DHS announced that E-Verify is the system designated for use by federal contractors for compliance with E.O. 12989.  According to DHS, “Agencies responsible for federal acquisition regulations (FAR) will send a Notice of Proposed Rulemaking (NPRM) to the Federal Register today soliciting public comment on proposed changes to these regulations. Comments will be accepted for 60 days.”

DHS also assured employers that using E-Verify will not be too painful: “More than 69,000 employers currently rely on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in fiscal year 2008. Of those queries, 99.5 percent of qualified employees are cleared automatically by E-Verify.” E-Verify is a free service that, according to DHS, usually verifies an employee’s work authorization in seconds.

As the DHS E-Verify System is currently designed, it may be used only for newly hired employees but legislation introduced by Senator Chuck Grassley on June 5, 2008, would expand the program to cover current employees also.  You can read more about the E-Verify System on the DHS website as well as in prior posts on this blog.

Contractors must still take care to avoid discriminating against applicants and employees who are simply suspected of being undocumented workers. As Procurement Executive Janice Sposato pointed out in April 1997 after the promulgation of the original E.O. 12989, there are various laws that prohibit discrimination based on citizenship status and national origin discrimination. Accordingly, contractors may not “single out or otherwise treat individuals differently because they are foreign born, ‘foreign-looking,’ have ‘foreign sounding names,’ or have accents. All individuals must be treated in the same way during the part of the hiring process in which work authorization documentation must be provided and inspected.

Related E-Verify & Immigration Law Posts:

Getting the Jump on No-Match Letters and Suspicious Document Notices

Safe-Harbor Rule for No-Match Letters: Part 1

Safe-Harbor Rule for No-Match Letters: Part 2

Safe-Harbor Rule for No-Match Letters: Part 3

The new amendments include:

• taxpayer protest procedures;
• jeopardy assessments (the right of the City to demand immediate payment if collection of a tax would be jeopardized by a delay);
• accuracy related penalties (authorizing the City to assess a 25% penalty for substantial underpayment or underreporting of tax); and
• safe harbor provisions for armed forces personnel actively serving in military combat zones.

Wilmington, the cultural and financial hub of Delaware’s New Castle County, has made collection of the wage tax a priority in recent years. Since January of 2006, the City has performed over 3,000 wage tax audits and collected more than $5.5 million in unpaid wage tax. According to City Finance Director Ron Morris, Wilmington expects to conduct approximately 12,000 tax audits over the next few years and add $2.1 million in new revenue in Fiscal Year 09 alone.

The wage tax is currently set at 1.25%.

Any person who works in the City of Wilmington or conducts business in the City from which he derives wages or business income, is subject to the City’s Earned Income Tax, regardless of whether he lives inside the City.

In addition, all residents of the City of Wilmington are subject to the wage tax. City residents must pay the tax on all earned income (whether derived from wages or business income) regardless of where residents work.

More information about the wage tax is available online at www.WilmingtonDE.gov. or by calling the City of Wilmington Finance Department, Earned Income Division, (302) 576-2418.