The Employer's Legal Resource - February 2011

Oh, Eric, Eric! Wherefore art thou Eric?

Well, Eric was no longer at North American Stainless, where he had been employed. NAS fired him when it learned his fiancée, also employed by NAS, had filed a charge of sex discrimination against it. So Eric filed his own charge with the EEOC and eventually sued NAS for retaliation in violation of Title VII.

The lower courts held Eric did not have a claim against NAS. Those courts reasoned that Title VII does not permit third party retaliation claims and Eric was not within the class of persons Congress intended to protect when it created a retaliation claim.

The Supreme Court took the case to address two questions: did NAS's firing of Eric constitute unlawful retaliation? And, if so, can Eric sue NAS under Title VII? The Supreme Court answered "yes" to both questions.

First, the Supreme Court held NAS's firing of Eric because his fiancée filed a charge of discrimination was unlawful retaliation. Unlike the text of Title VII's anti-discrimination provision, the text of Title VII's anti-retaliation provision does not limit it to discriminatory actions that affect the terms and conditions of employment. Instead, it prohibits any employer action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Having made this distinction, the Supreme Court easily concluded: "We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancée would be fired." (Because, after all, "parting is such sweet sorrow.")

Next, the Supreme Court wrestled with whether Eric could sue NAS under Title VII. Title VII provides that "a civil action may be brought . . . by the person claiming to be aggrieved." The Court held the word "aggrieved" in Title VII incorporates a "zone of interest" test; that is, a person has standing to sue under Title VII if he has an interest sought to be protected by that law. So, here, Eric was an employee of NAS; the purpose of Title VII is to protect employees from their employer's unlawful actions; NAS intended to harm Eric's fiancée when it fired him; hurting Eric was the unlawful act by which NAS punished his fiancée; and therefore Eric was within the zone of interest sought to be protected by Title VII and could sue.

Of course, the Supreme Court's decision begs the question: what types of relationships are entitled to protection? Justice Scalia, writing for the Court, acknowledged that an employer is now at risk when it fires an employee who happens to have some connection to another employee who has filed a charge with the EEOC. But the Court refused to identify a fixed class of relationships that would give rise to a claim. The only guidance offered by the Court was that "firing a close family member" will "almost always" qualify, while a "milder reprisal" on a "mere acquaintance" will "almost never do so." So it remains for courts in the future to figure this out.

Or, in the words of Shakespeare, "This day's black fate on more days doth depend; This but begins the woe others must end." Romeo & Juliet, 3.1

By Jon E. Brightmire jbrightmire@dsda.com

Two things seem to remain constant. Technology keeps changing the way we do business, and the EEOC keeps forming opinions about those changes. Here is another example. The EEOC has issued an informal letter opinion on the use of video résumés, which you can read here.

The EEOC admits that assessing applicants through video technology is not per se illegal. However, it cautions that you cannot do through video what you could not do through old-school written applications and in-person interviews. In other words, you can't prompt an applicant to address, via video, any disabilities she might have or whether she plans to have children.

The upside seems obvious. The employer can probably screen many more applicants via video than live. However, as the EEOC points out, the video screening does not allow for appropriate follow-up questions that might better assist you in determining a person's qualifications. You might get caught making the dreaded "assumption" about a person's qualifications from seeing that person, without affording him the opportunity to explain how he can do the job.

Bottom line. The EEOC does not prohibit it. If you are going to use video résumés, be sure you do not make any assumptions about a person's qualifications. Remember the old adage, you can't judge a book by its cover.

By Kristen L. Brightmire, kbrightmire@dsda.com

Recently, On January 5, 2011, United States Citizenship and Immigration Control released a new version of the I-9 Handbook for employers. Some of the new tools for employers include expanded guidance on lawful permanent residents and foreign students, examples of new USCIS documents; expanded guidance on extensions of stay for employees with temporary employment authorization, expanded guidance on processing employees in or porting to H1-B or H2-A status, and additional guidance on copying or electronically storing I-9s.

In regard to Lawful Permanent Residents, the manual now explains that the Permanent Resident Card may have no expiration date or it may have an expiration date of two or ten years after it was issued. However, regardless of any expiration date that may appear on a Permanent Resident Card, employers are never required to re-verify when a Permanent Resident Card expires. The manual also explains how employers should handle various situations where an employee presents a Permanent Resident Card that has already expired before the verification or a presents a temporary I-551 stamp in their passport (indicating temporary status as a permanent resident.

The manual also clarifies that employers should not re-verify the following documents after they expire: U.S. passports or list B documents that expire (such as a driver's license). This is different from Employment Authorization Cards, which require employers to re-verify the employee's work authorization after the card expires. The manual now contains an image explaining the information that appears on an Employment Authorization Card.

New sections of the manual explain in detail how employers should handle I-9s for Exchange Visitors with J-1 status and Foreign Students with F-1 and M-1 status. The manual discusses the different employment authorizations forms for employees on J-1, F-1 and M-1 status, how to verify their documents on the I-9, and who to contact in regard to questions about work authorization. For J-1 visitors, this contact is the responsible officer listed on the employee's Form DS-2019. For F-1 and M-1 students who do not have Employment Authorization Documents, this is the Designated School Official listed on the employee's Form I-20.

Finally, the manual includes new clarification on how to meet I-9 requirements for employees on H-1B, H-12A, or other temporary visa status when the employee's status is expiring or who is changing employers. Although some employees may be able to continue to work while an extension of status petition is pending, it is important to confirm this each time the situation arises, and there are specific requirements for documenting the issue on the I-9.

Although the I-9 form may appear simple on its face, there are a variety of situations that may arise and require specific, detailed procedures. Employers should take care to ensure compliance with all of the I-9 requirements, especially in light of the government's new focus on I-9 audits as a tool for enforcing immigration law. The I-9 Manual for Employers is an essential tool for all human resource departments. Individuals who complete I-9s should be very familiar with the manual. However, if the manual does not clearly answer a question, employers should contact legal counsel for advice.

You can download the new manual by clicking here.

NOTE: On January 20, U.S. Immigration and Customs Enforcement (ICE) announced the creation of an Employment Compliance Inspection Center, adding 15 auditors devoted to assisting the field offices expedite Form I-9 audits. According to ICE, it conducted 3,769 Form I-9 audits in 2009-10 and will be increasing those numbers.

By Hilary Velandia, hvelandia@dsda.com

Tax

TAX CHANGES AFFECTING SMALLER EMPLOYERS

Last week, a Florida jury awarded our client, Florida Gas Transmission Company $82.7 million in damages against the Florida Department of Transportation/Florida Turnpike Enterprise to reimburse FGT for relocation of its natural gas pipelines in connection with a turnpike widening project. FGT was represented at trial by Tom Q. Ferguson of Doerner Saunders. Click here to learn more.

Congratulations Tom!

Mike Wofford serves on the legislative committees of both the Oklahoma State Chamber of Commerce and the Environmental Federation of Oklahoma, a statewide industry group. Mike's service on these committees provides the firm with timely information on legislative proposals that can affect our clients. If you have questions about the status of Oklahoma legislation, or if there are legislative or regulatory issues that might be of interest to you or to your company or organization, contact Mike at 405-319-3504 or mwofford@dsda.com.

Congratulations to Sam G. Bratton, II and G. Michael Lewis for articles written by the Tulsa Business Journal New Focus for Bankruptcy Actions and Client Requirements Provide Opportunities for Young Lawyers.