Category Archives: Hiring

“Hire American” Doesn’t Justify Employing Only Citizens

As an employer, you have to verify the work eligibility of every employee, and that frustrating process might make you consider hiring only U.S. citizens. Please reconsider.

The form for verification, the I-9 form, is confusing and some of the documents you are presented may not look familiar to you—permanent residence cards, foreign passports, employment authorization documents, tribal documents. So, you may find completion of the required I-9 form stressful, especially since you have to swear under oath on the I-9 itself that the documents the employee presented and you examined appear to be genuine and the person is authorized to work in the U.S. to the best of your knowledge.

It is tempting to consider just making a blanket rule that you will only hire U.S. citizens. Then, you would only need to look at a driver’s license and social security card. Additionally, President Trump signed an executive order last year requiring “Buy American, Hire American” (notwithstanding the fact that he uses foreign guest workers as servers, housekeepers and cooks at his properties like Mar-A-Lago). So, wouldn’t you just be doing your patriotic duty by hiring only American-born workers at your company?

No.

There are both longstanding legal and historical reasons that “Hire American” should only be treated as a slogan and not an employment policy.

The same Immigration Reform and Control Act (“IRCA”) that introduced the I-9 form to American employers in 1986 also codified that employers with four or more employees are prohibited from discriminating on the basis of citizenship status, which occurs when adverse employment decisions are made based upon an individual’s real or perceived citizenship in the U.S. (or lack of citizenship) or an applicant’s legal immigration status.

The IRCA antidiscrimination provisions also prohibit small employers (e.g., those with four to fourteen employees) from committing national origin discrimination against any U.S. citizen or individual with employment authorization. Employers with 15 or more workers were already prohibited from considering national origin in employment decisions by Title VII of the Civil Rights Act of 1964. Any employer who only hires applicants born in the United States discriminates against all other national origins.

Therefore, any employer who takes into account an applicant’s country of birth or citizenship status when making hiring decisions violates federal law. Your only interest in someone’s citizenship or immigration status should be finding out within the first three days of work whether your new employee is eligible to work in the United States, no matter where that employee is from or whether he or she is a visa-holder, born elsewhere but now a green-card holder, or a citizen, naturalized or native-born.

But it isn’t only for legal reasons that you should never discriminate against legal immigrants in your workplace. Hiring legal immigrants also strengthens our democracy.

It is  important to understand the historical context of denying a legal immigrant the chance to work in America, which is supposed to be the Land of Opportunity. Our history is full of times when we excluded groups of immigrants in ways that now seems nonsensical.

For example, in the 1840’s and 1850’s, Irish immigrants fleeing a deathly famine and British oppression arrived on the East Coast in “coffin ships” (so called because almost 25% of the passengers who started the journey died during the passage). All of the lucky ones who survived to reach the United States were hungry, many were unskilled (often farmers who were initially unsuited to work in urban areas), and almost every one of them was Catholic. This was at a time when some Protestant conspiracy theorists fanned the flames of fear that the pope and his army would land in the United States, overthrow the government, establish a new Vatican in Cincinnati (of all places), and impose the Catholic canon as the law of the land.

(Forgive me if you already know all of this, but it appears to me that, 170 years later, the mistakes of our history are being forgotten and, therefore, will be inevitably repeated).

In cities like Boston, it was hard to assimilate such large numbers of immigrants and some employers decided it was easier just to exclude Irish workers from employment completely. “No Irish Need Apply” was a sign common in Boston storefronts at that time.

National origin and religious prejudice ran high across the country, and bigoted groups formed, such as the Know-Nothing party who believed that Protestantism defined American values and Irish Catholics had no place in America (regardless of the First Amendment’s protection of freedom of religion).

Fortunately, America also had its better angels. Abraham Lincoln was among the many Americans disturbed at the rise of this bigotry, as he explained in an 1855 letter to a friend: Continue reading “Hire American” Doesn’t Justify Employing Only Citizens

Five Tips for Hiring Teenagers

Summer is coming, and you may be thinking about employing some teenagers. Here’s some lawyerly advice: proceed with caution. Employing teens requires you as an employer to foresee potential problems and correct them very early.

Here are five tips for hiring teens:

1. Safety: You have to be much more safety-conscious when you employ teens. In 2014, workers ages 15-19 had more than twice as many injuries that sent them to the emergency room than employees over age 25.

Your company has a legal duty, according to OSHA, to provide a safe working environment for all employees, which means you need to engage in extensive safety training with new teen employees. Cover the most common workplace hazards and injuries such as slips, trips and falls, chemical exposure, burns and cuts, eye injuries, machinery malfunctions, and strains and sprains, as well as any known hazards specific to your workplace.

Remember that teenagers are often uncomfortable acknowledging their ignorance or inexperience, so they may not ask questions that would indicate that they don’t clearly comprehend your training or instructions. They also may not learn without extensive repetition of the rules. Don’t assume that stating a safety rule one time is going to sufficiently train a teen worker.

2. Sexual Harassment: Many recent Equal Employment Opportunity Commission enforcement actions have shown that teenagers are very vulnerable when it comes to sexual harassment. They need as much if not more training than your more mature employees in how to recognize, prevent and report harassment, even if the job is not considered long term for that teen. Continue reading Five Tips for Hiring Teenagers

No Peeking! Social Media in Hiring

Can the company recruiter review an applicant’s personal social media accounts before making a hiring decision? Yes, in Texas, an employer may look at any public postings, but there are enough legal risks that I would discourage you as an employer from peeking.

Why shouldn’t an employer take advantage of the wealth of information that may be available on an applicant’s Facebook page, even if the employer hasn’t “friended” the applicant? Because much of the information you could discover on an applicant’s social media is not job-related, and therefore becomes the basis for a discrimination claim.

Because many people are careless about the privacy controls on their social media profiles, you may find out that your applicant has a disability that was not obvious during the interview, but comes more clearly into view when you read the “I’m praying for you” messages on the applicant’s Facebook page. Are you going to violate the Americans with Disabilities Act by failing to hire the applicant now that you know this information?

You may discover that the applicant is pregnant when you see that she announced the exciting news on Twitter. “But I want to know if she is pregnant, so I don’t lose her for twelve weeks next year,” you will tell me.

In response, I’ll refer you to the recent case of United States Equal Employment Opportunity Commission, et al. v. Brown & Brown of Florida, Inc., in which an applicant was offered a $13.50 per hour job with an insurance brokerage that she joyfully accepted. She told her old employer she was leaving. She followed up with the new employer and asked about the company’s maternity policy, revealing that she was pregnant. Her job offer was revoked by the brokerage that same afternoon. That revocation decision cost the brokerage $100,000 because it violated the Pregnancy Discrimination Act.

So, do you really want to know what you may find out on social media? Three-quarters of all Human Resources professionals surveyed in 2013 by the Society for Human Resource Management said that they do not screen personal social media accounts because they fear what they will find. I advise my employer clients to exercise the same restraint.

But if you insist on peeking:

  • Screen all or none. Your electronic screening history will be subpoenaed in any discrimination claim and it will be apparent if you only screened women, for example, to see if they have young kids that might affect their attendance.
  • Don’t ask for the applicant’s passwords to their social media accounts. Many states have passed laws banning this practice and any jury that hears that you made that request will hate your guts.
  • Getting a third party to screen for you requires that you follow all of the complex requirements of the Fair Credit Reporting Act (prescreening notice, summary of rights, pre-adverse action notice, time to correct the record, post-adverse action notice).
  • Be careful what action you take once you have screened. If you determine that the applicant is transgender, Muslim, disabled or pregnant based on her FB page, are you going to risk a discrimination lawsuit by not hiring her? This is when you need to get your employment lawyer involved.
  • What if you see posts or pictures that cause you to believe that an applicant could be a threat to other employees? If you hire him anyway, you can be sued for negligent hiring if he ever becomes violent at work.
  • If you see a post reflecting union activity or protected concerted activities (discussing wages or terms and conditions of employment, such as complaining with a coworker at a former job), any adverse action you take involving that applicant could violate the National Labor Relations Act.

I don’t include LinkedIn when I am advising employers to stay away from an applicant’s social media pages. LinkedIn and similar industry sites are commonly used for business and not social purposes. Applicants are generally much more discrete about what they post on their LinkedIn pages.

In addition, posting company job openings on social media and using a service like LinkedIn to attract passive and active job applicants is common now and doesn’t run the same risks as peeking at an applicant’s personal social media pages.

Employers Must Use Revised I-9 Form Beginning September 18

The very important I-9 form, which verifies a new employee’s identity and eligibility to work in the United States, has been revised again. Employers must start using the revised form on September 18, 2017.

The revision, marked “07/17/17 N” and carrying an expiration date of 08/31/19, has to be completed only by new hires. You do not have to go back and get all of your current employees to recomplete an I-9 just because the form changed after their hire date.

Employers must complete an I-9 form on each new employee within 3 days of hiring. This process started in 1986 as part of the Immigration Reform and Control Act, which prohibits employers from taking on a new employee without verifying the employee’s identification and eligibility to work legally in the United States.

The verification is done by reviewing the employee’s identification and employment eligibility documents, such as a passport, a permanent resident card, or a driver’s license and social security card, and completing the I-9 form. There is a very helpful employer’s guide available online that shows you what a valid document is supposed to look like. Doing your due diligence requires that you consult that guide each time you look at a new employee’s documents.

Because of the views of the current administration, employers can expect an increase in enforcement of immigration laws, including more frequent ICE audits of your I-9 compliance. There are expensive penalties if you as an employer cannot produce accurately completed I-9 forms for each of your current and former employees.

The minimum fine is $216 per error on an I-9 and the maximum is $2,156 per error (including current employees and former employees) for each paperwork violation. That means that a single I-9 form which has multiple errors could cause the employer to be responsible for multiple penalties per form. If ICE determines that the employer has failed to accurately complete I-9s on at least 50% of its employees, the maximum fine of $2,156 will be levied on the employer for each form.

You must keep an I-9 form on every active employee as long as the employee works for you. For a terminated employee, you must be able to produce an I-9 for three years after the hire date or one year after termination, whichever is later. To make it easier to remember, most employers wait to purge I-9 forms until three years after an employee’s termination.

Typically, when ICE appears for an I-9 audit, they will require that you produce I-9 forms for each current employee and any employee terminated in the last three years. You are given 72-hours’ notice to pull all of these forms together, which is why many employers store the I-9 forms together rather than in each employee’s individual file.

Six Steps to Preventing and Reacting to Employee Embezzlement

This week’s local headlines involve the city manager of Sunray, formerly the police chief and city manager of Panhandle, being accused of employee embezzlement. Rob Roach was arrested this week after an investigation by the Texas Rangers for alleged theft by a public official of property between $30,000 and $150,000.

I have no idea about Mr. Roach’s guilt or innocence, but the news did remind me about one of the most disappointing things about my 30 years of law practice in Amarillo, Texas–the large number of times I have had to help an employer who has been ripped off by a trusted employee.

I have seen employees use company credit cards for personal purchases (how many law firms need to be buying diapers at Sam’s?), steal cash paid by a patient for a medical visit, forge signatures on checks made out to the employee (one trusted employee did this while her boss was undergoing chemotherapy), turn in fictitious business expenses, and create false company payrolls or bank accounts.

Unfortunately, employee embezzlement is not unusual in our area, but it is often preventable. We Texans tend to be trusting people, but you wouldn’t just leave the front door to your house open with a sign pointing out where you keep the good jewelry. As a business owner or manager, you should be just as wise about protecting your business and your livelihood from thieves.

Here are six steps that you can take to help curb any embezzlement by your staff:

  1. Set the tone. Do you as a business owner or manager demonstrate integrity in how you do business? Your employees are taking their cues from you. If you cheat on your taxes, overcharge your customers or rip off your suppliers, don’t be surprised if your employees begin to feel that they are entitled to cheat you as well.
  2. Hire well. If an employee is going to be handling money in your business or given a company credit card, be sure to do a criminal background check (following all the Fair Credit Reporting Act requirements for doing so). Check all of the applicant’s references and past employers, asking specific questions about the potential employee’s integrity.
  3. Reduce the opportunity for theft. Guard which ones of your employees will have access to company goods and cash. Protect your keys, passwords, and access to your checks, your online banking and all accounting records. Use the built-in protections of your software. Quick Books, for example, will allow you to set up limited access for certain functions so that no employee has free rein with all of your bookkeeping. Require weekly or monthly balance sheets, budgets and profit and loss reports and study them carefully. In addition, train yourself to use your accounting program so you can randomly double-check things yourself.
  4. Utilize more than one person for the bookkeeping. You should have checks and balances in place, such as having a different person sign the checks than the one who printed them. If your customers pay in cash, your system for receiving the deposits, writing receipts, and reconciling the cash to the accounts must be clear and followed religiously. Cross-train more than one person for each job so that there is someone always available to audit the other’s handling of the money. Take a cue from banks, which often require their financial personnel to take vacations lasting at least one week so that another person can review the absent employee’s money-handling and lending procedures during that break.
  5. Watch employees who are at risk. Triggers such as gambling, addiction and family stressors often proceed employee theft. You must be aware of what is going on in your employee’s lives outside of work if you want to prevent misconduct inside of work. Also, keep in mind that many of your employees have financial problems every day, even without specific triggers. It is just a fact that Americans tend to live beyond their means. Providing free financial education and guidance may not seem like your job, but it could prevent an employee’s desperate attempt to embezzle from you.
  6. Consider surveillance of your workplace. While audio recordings create potential federal wiretapping issues, you can always install video surveillance of your workplace. You can also search employee emails and physical surroundings, like desks. Of course, you need to talk to your employment lawyer before starting these activities to get the proper consents and notices and make sure you are not violating privacy rules, but if you believe some surveillance or searching is the best way for you to protect your property, you should explore this option.

Despite all precautions, you may someday suspect that an employee has embezzled from you. If you are unfortunate enough to be ripped off by an employee, here are the six steps to reacting to the theft:

  1. Internal investigation. You can put an employee you suspect of embezzlement on a suspension while you investigate. Get help from your employment attorney as you gather documents and talk to coworkers so that you understand exactly what happened and how much was stolen.
  2. Confront the employee. Before you fire the suspect, have a face-to-face meeting with the employee to allow the employee to explain, if possible. If the evidence still demonstrates that the employee is guilty, then talk to the employee about a confession (in writing) and repayment of the debt. Once caught, some employees are ashamed and cooperative. However, do not block the employee from walking out (you will be accused of false imprisonment) or defame the employee by sharing information about the theft with those who have no pressing business need to know.
  3. Fire the employee. Don’t worry about a wrongful termination suit or unemployment claim. Clear evidence of theft by the employee is one of the strongest defenses to any kind of legal complaint by a former employee. However, be very careful about deducting your losses from the employee’s final paycheck. The employer has the burden to demonstrate that the employee is personally and directly responsible for the theft before the deduction can be taken, so make sure your evidence is solid.
  4. Alert your insurance company. Most business insurance policies include an employee theft provision. You may be able to recoup some of your losses with insurance. File a claim with the insurance company and provide it with the evidence. Just understand that often the insurance company will insist that you also involve the police.
  5. Prosecute the theft. Your insurance company may require this before reimbursing you for your losses. More importantly, you need to prosecute to prevent the employee from doing this to another employer. Getting away with a theft once makes it more likely the employee will steal again.
  6. Analyze and correct your procedures. Do a deep dive into your security vulnerabilities that led to the embezzlement. Did you allow one person too much access? Were you sloppy with your checks and balances? Did you fail to review your credit card statements? You need to understand why this happened and how to prevent it in the future.  

Preventing Racism and Incivility in Your Workplace

As a business owner or manager, you have the opportunity and the responsibility to combat racism and hatred in your workplace. Despite the bitterness of current political discourse and the appalling display of racism in Charlottesville, Virginia last weekend, or maybe because of it, everyone deserves to be able to go to work and feel accepted, valued and safe.

From a legal perspective, the Civil Rights Act of 1964 and the discrimination statutes of every state prohibit racism. Racist expressions in the workplace can lead to discrimination cases that are costly, both in terms of money and company goodwill. For example, a Dallas milling company settled with the EEOC in 2012 for $500,000 after 14 African-American employees alleged that their supervisors did nothing when the complainants faced racist graffiti and slurs by co-workers, including “KKK”, swastikas, Confederate flags, and “die, n—-r, die” as well as nooses displayed in the workplace.

This kind of discrimination can hijack the future of a company. Why would anybody with a conscience choose to work there ever again? Or do business with such a company once these actions were known? No amount of wise counsel from an employment lawyer like me can really defend, much less restore a company’s prosperity after these sorts of egregious actions are allowed to occur.

Employers trying to avoid discrimination lawsuits and to build a culture of decency can put into place anti-discrimination policies and training, can immediately investigate and take remedial action when racism is suspected or discovered, and can make advancement and better pay at the company dependent on an employee’s or manager’s embracing of equality.

But perhaps the most important way you can prevent discrimination at your company is by setting an example of what you expect from your employees. You are the yardstick by which your company is measured.

Christine Porath, a leading authority on decency in the workplace, says in her book that 25% of employees acknowledge that they acted uncivilly in the workplace because they saw their bosses acting that way.  As the boss, you need to have zero tolerance for incivility because it is like a gateway drug—incivility often becomes prejudice, harassment and discrimination. Getting away with one often leads to the others.

As a business owner or supervisor, you set the tone for your employees. Your words and actions determine if the workplace is respectful or hostile. You must tell your workers that bigotry is unacceptable and that you have a zero tolerance for stereotyping, name-calling, racial slurs, bullying and other abusive behaviors.

But more importantly, you personally must show your employees, not only by avoiding participating in these kinds of abuses, but also by making a special effort to “be the behavior you want to see” in your employees—respectful of all people, patient, empathetic, humble, transparent, honest and self-controlled.

Ending racism in the workplace is not just your legal responsibility—it is a moral one. Continue reading Preventing Racism and Incivility in Your Workplace

Key to Good Hiring: Good Interviews

In these times of low unemployment, don’t you as an employer want to know the key to good hiring? After all, a bad hire means that recruiting dollars are wasted, projects remain incomplete and you may even lose customers or good employees who are tired of dealing with the subpar employee.

In an ideal workplace, each new hire performs the job duties well, fits into the culture, contributes new ideas and energy, forms close professional relationships with coworkers and increases the efficiency and effectiveness of the organization.

But how do you achieve that ideal? You have to know the key–good hiring requires good interviewing.

Okay, that should have been obvious. But in my 25+ years of experience in the world of employment, I’ve seen more poor interviews than good ones. See if any of these questions sound familiar:

  • How did you hear about this job?
  • Tell me about yourself.
  • How do you know so and so?
  • Do you know how to use a computer?
  • Do you like to work in a fast-paced (or casual, or family-oriented, etc.) environment?
  • Insert any other close-ended question that provides zero information here.

Open-ended questions that are too general like “tell me about yourself” will only inform you of whatever the applicant wants you to know. Close-ended questions that require just a “yes” or “no” answer provide you with no useful information.

We often treat interviews like we are trying to make small talk at a cocktail party. And we often have similar awkward results. So how do you interview well? Continue reading Key to Good Hiring: Good Interviews

Hiring Older Applicants Protects Against Age Discrimination Claims

As older applicants know, getting a new job when you are over 50 years old is difficult and the reason often involves age discrimination. Employers like to recruit youthful employees, but they overlook the expertise and loyalty that older workers offer. Graying workers are fighting back in the form of age discrimination suits, so employers would be wise to reevaluate their aggressive pursuit of young workers.

Texas Roadhouse, the restaurant chain, recently agreed to a $12 million settlement in an age bias suit brought by the Equal Employment Opportunity Commission alleging that Texas Roadhouse overlooked older applicants for server, bartender and host positions. The restaurant denied any wrongdoing, but after spending years in litigation and countless dollars on attorneys’ fees, Texas Roadhouse agreed to ensure that older applicants are considered consistently alongside younger ones. Silicon Valley is also facing allegations that no one over 40 is welcome to apply for a job (women of all ages face similar barriers in the tech industry).

In a more unique claim, PriceWaterhouseCoopers is the defendant in a class-action lawsuit targeting its college campus recruiting program. The 53- and 47-year-old named plaintiffs allege that their applications for entry-level positions were rejected because they did not fit PwC’s usual profile of a Millennial college grad starting a career in accounting. The plaintiff’s pleading scornfully mentions PwC’s brochures featuring lots of smiling 20-somethings. PwC admits that 80% of its employees were born in 1980 or later. Statistics like that make PwC a rich target for an age bias suit by an angry Baby Boomer or Gen X’er.

Smart employers are learning that the emphasis on hiring people under 40 can backfire. In 2016, more than 20,000 age discrimination claims were filed with the EEOC and another 2500 such claims were made to the Texas Workforce Commission that year.

Employers who fail to hire older workers risk more than just lawsuits. They miss out on the loyalty and tenure of older employees. While young people are prone to changing jobs frequently, older applicants tend to stay and be productive for many years. Society for Human Resource Management research shows that the employers they surveyed have discovered that older workers are more “mature/professional” and have a “stronger work ethic”. They found that contrary to stereotypes, older workers actually miss less work days and are excited to learn new things.

Mature workers often have broad networks and contacts. Their work and life experience mean they require little training or supervision. And many applicants born in the 1950s and 1960s have been using computers consistently since the Apple 1 was invented, so their technical skills are well-honed.

These realizations have caused some employers to adopt an “older workers first” preference in their hiring practices.

How can you as an employer avoid age bias mistakes with your recruiting and hiring and take advantage of the benefits of hiring older workers? Continue reading Hiring Older Applicants Protects Against Age Discrimination Claims

New Employees Should Complete New I-9 Form

If you are hiring any employees, this is just a quick reminder that you need to start using the new I-9 form to confirm your new worker’s eligibility to be employed in the United States.

The new I-9 form was released on November 14, 2016 (look for that date on the form to verify that you are using the most recent one). You already can be using the new form, but it is mandatory that you are using that new form by January 22, 2017. My suggestion for making it easy on yourself is to begin using the new form today, or at least no later than January 1, 2017, so that you start the new year off right.

You do not have to update any of your completed I-9s on current employees with the new form. It is only mandatory that you start using the new I-9 with employees who are hired beginning in January 2017.

As you know, employers must assure an I-9 is completed on each new employee hired (citizen or otherwise) to document identity and authorization to legally work in the United States. The new employee must bring the proper forms of identification and work authorization so that you can complete the I-9 by the third business day of employment, or you can no longer employ that worker.

Mistakes happen on an incredibly frequent basis while filling out I-9 forms and employers get penalized substantially if Immigration and Customs Enforcement (“ICE”) audits an employer’s forms. Here is a guide to the most common mistakes and how to avoid them.

Another way to avoid mistakes on the I-9 form is Continue reading New Employees Should Complete New I-9 Form