Welcome to Legal Briefs for HR! This update on issues that matter to employers is provided to HR professionals, in-house counsel, business owners and others who can benefit from receiving monthly updates on new laws, court cases, helpful websites and more. Anyone is welcome to join . . . just email me to be added to (or removed from) the group of over 3500 subscribers. Past editions are posted at http://www.munckcarter.com/ under E-Newsletter.

A warm welcome to new subscribers who attended talks I gave for East Texas HRA, the Texas Association of Staffing and at HR Southwest in Fort Worth. I'm looking forward to upcoming speeches for Corpus Christi HRMA (Nov. 15) and North Texas SHRM (Nov. 27).

Although email makes one's physical location largely irrelevant, I'm happy to announce that my office has moved! We are situated in a new, larger space near the intersection of I-635E and Central Expressway, here in Dallas. One of the advantages of this space is that I have a big, shiny new training room which can accommodate large groups, so we will be offering lively, interactive legal updates on a variety of issues for our clients and friends. The new address is below . . . stop by and say "howdy" if you're in the area!

Here's the latest:

1. Final Scene in "Annie Get Your Gun (Out of My Parking Lot)" - Employer policies that ban workers from having guns in their vehicles on company parking lots are "an effective method of reducing gun-related workplace injuries" and the 2004 Oklahoma statute (as amended in 2005) that prevented employers from doing so is in conflict with and pre-empted by federal safety law, according to a federal judge. In his 93-page opinion, issued on Oct. 4, the judge issued a permanent injunction to prevent enforcement of the OK law, citing to the OSHA general duty to provide a safe workplace. Per the opinion, 13 states (including Texas) have rejected similar laws while employers in AK, KS, KY and MN cannot ban guns from their workplace parking lots. Both SHRM and the American Bar Association supported the right of employers to ban guns from their entire premises, including parking areas.
   
   
2. Scratch the Batch of No Match - 140,000 SSA No-Match letters, originally due to be mailed to employers of 8 million workers whose SSN numbers are suspect, may be burning in an incinerator about now due to an injunction that issued on Oct. 10. Unlikely bedfellows, the AFL-CIO and the U.S. Chamber of Commerce, successfully argued that since the SSA can't resolve all the mismatches in the 90-day "safe harbor" window, it was inevitable that legal workers would be fired. Given the "staggering" rule and the "severe" consequences to some, including civil and criminal penalties for noncompliant employers, the judge has stopped use of the letters as an immigration enforcement tool. For now. Keep on eye on H.R. 3950, a bill introduced in Congress on Oct. 23 to approve the Department of Homeland Security (DHS) final reg that was meant to take effect before the judge in CA stomped on it.
   
   
3. Raid! - While the feds inch along in addressing illegal immigration, enforcement activity seems to be picking up the pace. In mid-October, seven supervisors/mangers, including HR specialists and others involved in the hiring process, were indicted for hiring illegal aliens, stemming from a May 2007 raid at a poultry processing plant in Missouri. The raid netted 136 illegal aliens who were charged with criminal immigration and 28 of them had additional charges of involvement in ID theft. The supervisors were charged with harboring illegal aliens for commercial advantage/private gain and with aiding others in encouraging illegal aliens to enter the U.S.
   
   
4. Finally! - The immigration buzz has finally moved US CIS (fka INS; a division of DHS) to action, in issuing the updated Form I-9 that we've been promised for years. While the form is available now at www.uscis.gov/files/form/I-9.pdf, employers are not required to begin using it until it is published in the Federal Register. You do not have to go back and ask existing employees to complete a new form, except for those that you will re-verify at some point due to the expiration of a document referenced in Section A of the old form. As before, you must keep the form on file (hard copy or electronic) for three years after the employee's hire or one year after the termination date, whichever is LATER. The list of acceptable documents has changed, with some documents removed from the lists and some new documents added. If you're not sure what these documents should look like, go to the newly revised Handbook for Employers (47 pages) which is posted at www.uscis.gov/files/nativedocuments/m-274.pdf. Ignore the forms vendors and ill-informed consultants who are warning that you must start using the new Form I-9 NOW or face penalties.
   
   
5. Drive Time - Yet another employer has learned that the commute to/from work can become compensable time for certain nonexempt employees. In this case, techs who install home security systems were given the choice to [1] drive their personal vehicle to the office and then pick up a Company truck for the day's installations; or [2] drive a Company truck between jobs and to/from home and receive work orders via voicemail and/or handheld computer. Those who chose [1] were not paid for the commute to/from the office in their personal vehicles. Those who chose [2] were not paid for the commute to/from home unless the distance was more than 45 minutes from their home AND the office. The nonexempt techs sued for full compensation for all time spent driving Company trucks and won. The Court looked at the reg that defined "hours worked" as all hours during which the employee is authorized or required to be on duty on the employer's premises or at a prescribed work place. Then they analogized the truck to the "employers' premises" since the employer exerted control over how the truck was used, including redirecting the techs via handheld computer while en route, and the techs did paperwork in them. Stevens v. Brink's Home Security Inc. (Wash. S. Ct. 10-18-07). As technology changes the way that work is meted out and performed, the compensable workday for nonexempt workers continues to grow.
   
   
6. Broker Blues - Add two more to the list of financial and insurance brokerage firms who find themselves paying big bucks to settle employees' discrimination claims. A financial brokerage has set up a $16 million fund to settle discrimination claims filed by black and Hispanic financial advisors and trainees. Jaffe v. Morgan Stanley & Co. (N.D. Cal. 10-22-07). Four days later, a separate settlement of $46 million for gender discrimination claims, involving the same company, was approved. In addition to the monetary portion of the settlement, wholesale changes in the way the company recruits, hires, trains its managers and post jobs is required. On the other coast, an insurance brokerage will pony up $8.5 million to a class of 187 current and former female execs who alleged discrimination in salaries, bonuses and promotions. Additional requirements include modifying the performance review system and having its compensation systems and decisions reviewed by a court-appointed monitor for three years. Hnot v. Willis Group Holdings, Ltd. (SDNY 10-22-07). Have you reviewed your hiring, compensation and performance practices/policies lately? An ounce of prevention is worth a pound of cure.
   
   
7. Sticks and Stones - Remember the adage that "words can never hurt me?" Well, that's not exactly true in employment law and it's really not true if you use the job title "engineer" loosely. Texas (since June 2003) and other states prohibit the use of the word "engineer" as a "professional, business or commercial identification, title, name, representation, claim, asset or means of advantage or benefit" unless the person meets the license eligibility requirements of the state issuing the engineering license. The idea behind these statutes is that only certain persons have earned both the privilege and responsibility of being called an engineer. And the penalty for statutory violations can be up to $3000 per day, so save your creative writing skills for less costly pursuits.
   
   
8. Who Ya Gonna Call? - Individuals seeking to file charges of discrimination with the EEOC via the national call center may find themselves playing phone tag soon. Since emergency funding to temporarily extend operations was nixed, the center will close its doors on Dec. 19 and the plan is to reroute calls to regional field offices. The Chair of the EEOC, Naomi Earp, is asking for patience in anticipation of delays.
   
   
9. Those Dirty Dawgs - The Texas Attorney General (AG) has just issued a scam alert relating to office supplies. Alert your accounting department of two variations on a theme - [1] an invoice for office supplies (e.g., paper, toner) is received but no product was ordered or received; or [2] supplies that were not ordered are delivered, and the invoice is dramatically marked-up over the normal price for these items. The crooks even call and make threats, when the bogus invoice is not paid. The good news is that if you receive unordered items, they are yours to keep and you don't have to pay for them. If this happens to you, sic the AG on 'em! For full text of the press release, go to www.oag.state.tx.us and click on News Releases.
   
   
10. Did You Know? - In Wisconsin, manufacturing, mechanical and commercial establishments must provide seats for workers when they are not actively engaged in work duties. Take a load off, buddy!
    
    
11. Thanksgiving - As HR professionals and related practitioners, you make workplaces functional, safe, productive and a source of pride (not just income) for so many people. You've been tasked with the awesome responsibility of shepherding the most important resource any organization has . . . its people. And you do it so well. In case you haven't heard it lately, THANK YOU for what you do, and have a wonderful holiday season with "real" family and your work family! Yes, even with the guy who "borrows" your favorite mug.
    

Until next time,

Audrey E. Mross
Labor & Employment Attorney
Munck Carter P.C.
600 Banner Place Tower
12770 Coit Road
Dallas, TX 75251

972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (cell)