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Temps Can Sue Host Firm for Bias

The Third Circuit U.S. Court of Appeals has held that a temporary employee can bring a race discrimination claim against his host company as well as the staffing agency that served as his prime employer.

In this case the staffing agency sent the plaintiff and other temps to a retailer’s new location where they unloaded merchandise, set up display shelves and stocked merchandise on the shelves to prepare for the store’s opening.

After working at the store for 10 days the plaintiff said the store manager accused him and the other African-American temps of stealing. He also said the store owner’s mother told him and two other African-American temps to “work in the back of the store with the garbage until it was time to leave.”

When the plaintiff and the others went to complain to the manager, they said a white employee blocked their path and used a racial slur. The plaintiff said the manager refused to deal with their complaints and told them that they were not permitted on the floor because of loss prevention concerns and soon after fired them.

The appeals court held that the retailer filled the role of employer as well as the staffing agency because it was responsible for paying the temps’ wages and had committed to making sure that all wage laws were met.

The retailer also directly supervised and directed the temps’ work and managed them in the same manner that it managed its regular employees, including assigning them the same tasks.

In addition, the retailer had signed an agreement with the temp agency promising to provide a workplace free from discrimination and unfair labor practices, and including adherence to all applicable federal, state and local employment laws.

The court noted that the relationship between the temp agency and retailer is likely similar to “a large number of temporary employment arrangements, with attendant potential liability” under federal civil rights and wage laws.

Employees Allowed Job Site Recording

The National Labor Relations Board says employers can’t ban employees from recording company meetings and conversations with coworkers, absent what it terms a valid legal or business justification.

The case involved work rules imposed by Whole Foods Market that prohibited employees from making audio or video recordings of team (staff) meetings or recording conversations with fellow employees on a job site.

The NLRB ruled that photography and audio or video recording in the workplace, as well as the posting of photographs or recordings on social media, are protected by federal labor law as long as “employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.”

Attorney John Merrell of the law firm of Ogletree Deakins points out that employers like Whole Foods can still ban employee recordings as long as the ban does not include the “concerted activities” that are protected under federal labor law – those having to do with wages and working conditions.

Examples of protected activity cited by the NLRB include recording images of protected picketing, and documenting unsafe workplace equipment or hazardous working conditions.

Employees also can choose to document and publicize discussions about the terms and conditions of their employment, and what they see as inconsistent application of rules by employers.

Also covered is recording of evidence to preserve it for later use in administrative or judicial forums in employment-related actions.

If an employer requires a recording ban to protect confidential processes or technology, the policy should say so clearly and be narrowly tailored to the times and physical locations where this kind of confidentiality is necessary, Merrell recommends.

How to Handle Surprise ICE Inspections

If you are unprepared for it, there is little that can be more disconcerting than a staff member informing you an investigator from Immigration and Customs Enforcement has just arrived at your door for an unannounced visit.

The good news is this doesn’t mean you will be subject to a federal employee rooting around your business that day. When investigating your adherence to immigration laws, ICE investigators usually come bearing a Notice of Inspection to review I-9 employment eligibility forms for current employees.

The time to reply is short – usually just three business days. However, the investigator may agree to a short extension for legitimate business reasons, says attorney Wendy Hyland of Fisher & Phillips.

A compliance review consists of an investigator verifying that your I-9 forms are properly completed. This usually includes reviewing the documents to ensure they are completed within three days of date of hire, are correctly and entirely filled out, and that documents establishing identity and employment eligibility are legitimate.

The bad news is that this review could take from as little as two weeks to as long as a year.

“The best news you can hope for would be a letter indicating that you are in compliance,” Hyland observes. If only minor violations are found, ICE may give you 10 business days to correct them.

For more substantive violations, ICE may issue a warning notice. But if the agency determines you knowingly hired individuals not authorized to work in the U.S., it can issue a notice you will be fined for $500-$700 per I-9 form.

“If this occurs, you should consult with counsel to request a hearing before an administrative law judge within 30 days, and your lawyer may be able to negotiate a reduction of the fine,” Hyland notes.

The two main steps to minimize the chances of the unwanted ICE knock on your door are: Educate your key workers, and conduct internal audits.

Many potential compliance problems can be avoided with clear procedures and training for workers expected to follow them. No matter which substantive area an investigator may seek to review, you will be in a better position if you have prepared response protocol and educated your employees in advance on your policies, Hyland says.

If you do that, even if an investigator arrives without notice you will have designated steps in place to be followed and employees will not panic. This will prevent unauthorized or uninformed workers from providing uncoordinated responses and the investigator from pulling unprepared employees from work for interviews.

Hyland says one of the most important steps to take is designating an employee with sound judgment and in a leadership role to lead your response from the first instance of an unplanned arrival.

Make sure employees know to call that point person to manage face-to-face interactions, prepare records and communicate on the company’s behalf. Instruct the designee to ask for the investigator’s credentials, a business card for follow-up, and additional time to prepare requested information, he advises.

Ensure proper training for personnel responsible for completing I-9 forms, Hyland says, and rely on an electronic I-9 system to automate the process and minimize opportunities for technical human error.

On a related note, even if state or federal law doesn’t require it in your case, he says you should consider using the federal Internet-based E-Verify system to confirm employment eligibility.

Review compliance issues periodically, well before an investigator arrives. Keep copies of documents verifying identity and employment eligibility used when completing I-9 forms so you can make technical corrections. “It’s a good idea to ask your attorney to review a sampling of documents for common problems that can arise,” Hyland says.

He stresses that time spent on these proactive measures is time saved in opportunity costs and lost productivity should the government come calling.

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