Category: Employment Law

By Ted J. Schneider, Esq.

The proliferation of high-speed communication devices have made us more productive and more vulnerable in terms of our privacy. Desk-bound workers may be tempted to use the office email account to engage in personal communications – however, they do so at some risk to their privacy. How much privacy can employees expect for their electronic communications at work? Practically speaking, it is safe to presume everything may be monitored by your employer.

The law generally favors employers’ interests over employees’ privacy. Employers clearly have a legitimate business interest in tracking employee time and productivity. Additionally, employers must ensure their workers are not engaging in any illegal activity or releasing trade secrets. The law permits employers to read employee email messages; if there is a company policy in place that assures employees that email messages will remain private, a worker may be able to argue that there was a reasonable expectation of privacy, but the effectiveness of that argument varies. The courts have generally upheld employers’ rights to monitor and read their employees’ email messages, particularly when there is a compelling, business-related reason for doing so.

There is, however, a law that affords employees some protection of their privacy when accessing personal email accounts, such as Gmail or Hotmail. Should the password to a personal email account fall into the wrong hands, the employer is prohibited from using that information to access the employee’s personal emails without the employee’s permission. Under the Stored Communications Act, such conduct is a crime and also creates a civil cause of action for damages. Keep in mind that accessing these accounts from a work computer can give the employer the right to read messages employees send or receive using company equipment. However, the employer is not permitted to log in and view other personal email communications.

By Ted J. Schneider, Esq.

The Immigration and Nationality Act (INA) makes it illegal for employers to knowingly hire undocumented workers and requires employers to verify each worker’s identity and eligibility by completing the I-9 Form. An employer’s failure to complete the I-9 Form can result in criminal and civil penalties.

The INA also protects individuals from employment discrimination based upon national origin, citizenship or immigration status. The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) enforces the INA’s anti-discrimination provisions. Victims of discrimination may file a complaint with the OSC to seek back pay, reinstatement and other remedies.

With so much at stake and so many potential pitfalls, it is important for all employers to familiarize themselves with the requirements and implement policies and procedures to ensure compliance.

Employers are prohibited from:

• Discriminating on the basis of citizenship or immigration status, with respect to hiring, firing, recruitment or referral. This rule applies to employers of four or more employees.
• Discriminating on the basis of national origin, with respect to hiring, firing, recruitment or referral. This rule applies to employers of between three and 15 employees. Employers may not extend different treatment to different individuals based on their birth place, country of origin, native language, ancestry or because they may look or sound “foreign.”
• Requesting more or different documents to verify a worker’s employment eligibility. An employer may not request different or additional documents for determination of citizenship or national origin than those documents specified on the I-9 Form. Furthermore, an employer is not permitted to reject genuine-looking documents.
• Retaliating against an individual who files charges with the OSC, cooperates with an investigation or contests an action that may be considered discriminatory or in violation of the INA.

To improve compliance in your employment procedures, consider implementing the following practices:

• Refrain from using discriminatory language in job postings, such as “green card only” or “U.S. citizen only,” unless it is required by law or by a government contract.
• In completing the I-9 Form, do not request specific documents over other permitted documents. Each employee is permitted to present any document from the list of acceptable documents stated on the form.
• Refrain from selectively verifying work eligibility for only certain employees based on their citizenship status or national origin; whatever your policy, make sure it is applied consistently to all employees.
• Avoid the appearance of discriminatory practices by verifying employment eligibility only after you have made a hiring decision, and give the employee three days to provide the required documentation.
• Do not immediately terminate an employee if you receive a “no match” letter from the Social Security Administration. While such a letter may mean the individual is not authorized to work in the United States, it is also possible that there is a discrepancy in the record due to a clerical error or legal name change.
• If you suspect that an employee is not legally eligible to work in this country, notify the employee and request valid employment eligibility documents before terminating or suspending employment.

By Ted J. Schneider, Esq.

Employers are subject to countless federal, state and local laws, imposing various requirements, including wage and hour and anti-discrimination laws. Unfortunately, many employers – particularly small businesses – are unaware of their obligations and violate various worker protection laws, often resulting in expensive lawsuits, civil settlements and criminal fines. Here are some common, costly mistakes employers make:

Misclassifying Non-Exempt Workers as Exempt

Generally, all workers are entitled to overtime pay and subject to minimum wage requirements. However, some employees – typically executive, managerial or professional employees – are “exempt” and receive a flat salary without overtime pay. The exemption only applies in certain situations, however, and many employees have improperly classified workers as “exempt” when they are legally entitled to overtime wages and minimum wage requirements.

Misclassifying Employees as Independent Contractors

Determining whether a worker is an employee or independent contractor depends on the level of independence or control the worker has in completing his or her tasks; the less control exercised by the worker, the more likely he or she will be classified as an employee. Factors to consider include how the worker is compensated, whether the worker faces any risk of loss in the transaction, whether the company pays the worker’s business expenses, whether the company can withhold payment for non-performance, and whether your industry as a whole considers workers in similar positions as employees or independent contractors.

Failing to Train Supervisors Regarding Employment and Labor Laws

Employment laws prohibit employers from taking action against an employee for certain reasons, including discrimination on the basis of a protected characteristic such as race, religion, etc. Employees are also protected from retaliation for complaints of discrimination or illegal activity. It is vital that supervisors be trained to manage their employees in accordance with all applicable laws.

Failing to Use an Employee Handbook

An employee handbook informs employees about the employer’s values and policies, and facilitates compliance with employment and labor laws.

Failing to Properly Document Employee Job Performance

Proper documentation clearly establishes the employer’s expectations and where the employee failed to reach them. Written job descriptions and employee evaluations serve as training tools, performance measures and critical evidence in the event you have to terminate an employee.

Failing to Accommodate Disabled Workers

The law not only prohibits employers from discriminating against those with disabilities, it also imposes a duty on employers to “reasonably accommodate” their disabled employees, so they can perform essential job functions. Accommodations may include assistive devices, a modified work schedule or a restructuring of job duties.

Failing to Comply with Wage Payment and Notification Requirements

Many states require employers to pay their employees in a certain manner, and provide written notice of pay periods and amounts. Failure to comply can subject the company to penalties.

Failing to Obtain Releases from Terminated Employees

When firing an employee, companies should obtain a signed release from the employee, waiving the employee’s right to pursue a legal claim against the employer. Often, this release is signed in exchange for a severance payment.