Today’s headline from Fox news says, “Despite Perceived Effectiveness, Most Employees Who Participate in Wellness Programs Do Not Stay Committed.”. The survey, conducted by Guardian Life Insurance Company North America, reports the following statistic:

Nearly half of employees who have participated in wellness programs in the past three years admit that their commitment trails off after just a few years

Wellness programs have been all the rage for the past several years. Employers have been advocating a healthy lifestyle for their workforces by implementing a whole host of rewards programs. Employees are encouraged to get healthy by giving up tobacco, keeping their cholesterol in check, exercise, and eat right.

And, how, pray tell, do employers make this healthy magic happen? With a wave of the magic wand called “cash,” of course! Employees who participate in their employer’s wellness program are often rewarded with cash prizes, reduced health insurance premiums, or, maybe, just the satisfaction of a healthier lifestyle.

And what’s in it for employers? For one, the hope of healthy employees who cost less in insurance premiums. You know the saying, “an ounce of prevention,” . . .. Some subscribe to the theory that healthier employees are more productive employees who make more money for their employers and cost their employers less. Go figure!!

Why whistle while you work when you can walk? Another invention for the healthy-office initiative.

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So why, according to the survey, aren’t employees sticking with it? Could it be that money really doesn’t motivate? Could it be that a healthy lifestyle requires more effort than the average American worker is willing to give it?

This is the third in a series of posts about the new Safe-Harbor rule issued by the Department of Homeland Security. For the 1st and 2nd posts in the series, go here and here.

What’s An I-9 Form?
The I-9 form is used to enforce the part of IRCA that prohibits employment of non-work-authorized aliens. All U.S. citizens, all lawful permanent resident aliens, all refugees and all asylees are allowed to work in the U.S. by virtue of their status. There are also some other categories of immigrants who are legally permitted to work here. All employers are required to prepare an I-9 form for each new employee to show that the employer has examined documents that demonstrate that the employee is legally authorized to work in the U.S. Employers are supposed to accept the documents only if they appear to be genuine (not counterfeit) and to relate to the person who provided them. Most U.S. citizens meet the document requirement by showing a driver’s license and a social security number card, but on the back of the I-9 form there are lists of other documents that can be used to prove identification and authorization to work.

Back To The Safe Harbor Rule
Under the new rule, if the employee has not provided corrected SSN information by the 90th day and the employee had relied on an SSN card as proof of work authorization, the employee must provide some other evidence of work authorization. The employee may not use documents that include the disputed SSN. The employee may not rely on an application for replacement work authorization documents, either. The employee also may not use non-photo identification.

What If The Employee Can’t Provide Acceptable Documents?
The employer has to either fire the employee or put itself at risk of prosecution for knowingly employing illegal aliens.

Is This Rule In Effect Now?
The rule was supposed to go into effect in September, but the AFL-CIO, the ACLU, the National Immigration Law Center and others filed a lawsuit [(AFL-CIO, et al. v. Chertoff, et al. (N.D. Cal. Case No. 07-CV-4472 CRB)] in the U.S. District Court of the Northern District of California to prevent the government from enforcing the rule. On August 31, 2007, the court issued a temporary restraining order preventing DHS and the SSA from implementing the rule. The SSA had planned to send about 140,000 no-match letters containing a DHS insert that would affect about 8 million workers to employers. The order stopped the SSA from sending those letters, so currently there are no pending no-match letters for employers to deal with.

What Is The Current Status Of The Regulations?
Implementation is on hold pending new rulemaking. DHS has just published a “supplemental proposed rule” in which it addresses problems the court identified. One problem was that DHS had stated that employers that complied with the rule would not get into trouble for citizenship status discrimination, even though OSC, not DHS, is the agency charged with enforcing IRCA’s citizenship status discrimination provisions. Another issue was DHS’s failure to explain and justify the change from its prior position on what social security number mismatches imply. Finally, DHS had failed to make a “regulatory flexibility analysis.”

DHS has not changed any of the provisions of the original rule. After the notice of the “supplemental proposed rule” is published in the Federal Register, there will be a 60-day period for the public to submit comments, and then DHS will review the comments, consider revising the rule, and then issue a final rule. It seems likely that the final rule will be the same as the rule published in August 2007.

Will The Safe Harbor Rule Be Mandatory?
DHS says it will be voluntary, but the court disagreed, noting that employers that receive a no-match letter must follow the rules to avoid being accused of knowingly employing illegal immigrants. At least employers who follow the rule will not have to worry about being accused of discrimination — the OSC has just issued a statement assuring employers that if they follow the rule in a careful, uniform manner, it will not find reasonable cause to believe that they have terminated employees because of their citizenship status. You can read the entire OSC statement here.

Bottom Line
This rule may provide some temporary relief to employers caught between a rock and a hard place trying to comply with competing laws, but I predict that it will ultimately result in a decrease in counterfeit SSN cards with made-up SSNs and an increase counterfeit SSN cards using stolen identities to avoid getting caught up in the no-match net. The government currently has no useful mechanisms in place to deal with identity theft that I know of but will end up having to create them. I see universal fingerprints or retinal scans on the horizon.

Last week I posted a couple of items about the Department of Homeland Security’s (DHS) “Safe-Harbor Rule,” which gives employers a method for avoiding prosecution for intentionally employing undocumented workers who have been listed in “no-match letters.” As you know if you read those items, the latest batch of “no-match letters” from the Social Security Administration (SSA) is on hold for an indefinite period. In the meantime, if you have received a no-match letter in the past, or suspect that you might be getting one in the future, is there anything you can do now to minimize future problems?

The answer to that question is yes. Employers now have two methods for finding out the extent of their no-match problem and of weeding out undocumented workers. One is the SSA’s Social Security Number Verification System (SSNVS), and the other is DHS’s “E-Verify” program. Both are free web-based programs.

The SSA program simply looks for mismatches between its records and your, the employer’s, records, and can be used for your entire workforce at any time. If you find a mismatch between your records and the SSA’s records as a result of using the SSNVS, the SSA tells you to check with the employee to find out whether you have the correct information in your records, and to resubmit the inquiry if you find an error. If that doesn’t end the problem, the SSNVS Handbook gives the following caution:

Remember

• A mismatch is not a basis, in and of itself, for you to take any adverse action against an employee, such as laying off, suspending, firing or discriminating.

• Company policy should be applied consistently to all workers.

• Any employer that uses the failure of the information to match SSA records to take inappropriate adverse action against a worker may violate State or Federal law.

• The information you receive from SSNVS does not make any statement regarding a worker’s immigration status.

What the SSA program really does, then, is give you an opportunity to reduce the number of clerical errors in your payroll database. It also will give you an idea of whether you might be of interest to DHS, since DHS is now using SSN mismatches as a method for identifying employers with a high number of undocumented workers. If you find out that you have at least 10 unresolved mismatches and those mismatches constitute at least 0.5% of your workforce, you should take additional steps now to avoid possible future liability. At least one of those steps should be signing up for the DHS E-Verify program.

E-Verify is a free Web-based system that electronically verifies the employment eligibility of newly hired employees, and can be used for new hires only. To use E-Verify, first the employer must register as a participant and sign a “Memorandum of Understanding” (MOU) that will outline the responsibilities of the employer, the SSA and DHS. Your employees who administer the program will be trained in how to use it.

E-Verify works by allowing you to electronically submit employee information taken from the Form I-9. That information is then compared to the more than 425 million records in SSA’s database and the more than 60 million records in DHS immigration databases. Results are returned in seconds.

According DHS, E-Verify is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. They claim that it will virtually eliminate Social Security mismatch letters, improves the accuracy of wage and tax reporting, protect jobs for authorized U.S. workers, and help U.S. employers maintain a legal workforce.

Once you are registered for E-Verify, you start the process after an individual accepts an offer of employment and after you and the employee complete the Form I-9. Under the terms of the MOU, the employer must initiate the query no later than the end of three business days after the new hire’s actual start date. If there is no problem, the confirmation should come through in seconds, according to the DHS/SSA website. If there is a tentative “nonconfirmation,” the employer prints out the tentative nonconfirmation notice generated by the E-Verify program and gives a copy to the employee. The employer also checks its input to make sure it did not make an error in submitting information to the system.

The employee decides whether to contest the tentative nonconfirmation and tells the employer his or her decision. If the employee decides not to contest the tentative nonconfirmation, the employer treats the employee as non-work-authorized and terminates employment.

If the employee decides to contest the nonconfirmation, the employer gives the employee a referral letter and tells the employee to visit the local SSA office, if the nonconfirmation was from the SSA, or to call the DHS toll-free hotline, if the nonconfirmation was from the DHS or when the employer finds a non-match between a non-citizen and a document generated by the E-Verify system for that employee. The employee has to follow up with SSA or DHS within 8 federal government business days. On the tenth business day, the employer queries the system to find out whether the SSA or DHS have issued a confirmation or a final nonconfirmation. If there is a final nonconfirmation, the employee should be terminated.

An employee should not face any adverse employment consequences based upon an employer’s use of E-Verify unless a query results in a final non-confirmation. The biggest downside of the E-Verify program is the lengthy list of responsibilities (15 items) that the employer must agree to take on. You can get more information about E-Verify on the DHS website here.

Earlier this month, USA Today reported that a University of Hawaii student had filed suit against the public university for housing dicrimination. He alleged that, although he and his partner had been granted permission previously to live in the university-subsidized family housing, that permission had been revoked because the state did not recognize same-sex marriage. The couple, therefore, did not meet the criteria necessary to qualify for family housing.

Laws that protect againt housing discrimination and employment discrimination are often passed in the same bill. But Hawaii is not one of the states that has set up its laws this way. Hawaii state law prohibits discrimination in employment decisions based on sexual orientation. It does not have a parallel law for housing discrimination, though.

As you may know, Delaware has neither. But it has not been for lack of trying. Senate Bill #141 has been proposed and passed in the State House of Representatives for several years in a row. It has been tabled each time and housed in the drawer of a legislator until it is proposed again the following year. The bill would amend the titles of the Delaware Code that deal with Employment Discrimination, Public Housing and Public Works, Equal Accommodations, and Insurance. In each of those areas, it is unlawful to use race, religion, national origin, gender, age, or other protected characteristics as the basis for granting or denying access to, for example, public housing or government contracts.

Currently, 17 states and the District of Columbia include sexual orientation in their list of protected classes for the purposes of employment discrimination. In Delaware and Pennsylvania, public employers may not consider sexual orientation but there is no equivalent law for private employers. And neither Delaware nor Pennsylvania is one of the 15 states (including D.C.) that prohibit sexual orientation in its housing laws. Both Maryland and New Jersey are included among the states that prohibit consideration of sexual orientation both in housing and employment.

Now that President Bush has signed into law the National Defense Authorization Act (NDAA), which amends the Family and Medical Leave Act (FMLA), employers must update their FMLA postings.

Under the FMLA, all covered employers are required to display and keep displayed a poster prepared by the Department of Labor summarizing the major provisions of The Family and Medical Leave Act (FMLA) and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees.

A copy of the standard FMLA poster prepared by the Department (WH 1420) is available for posting in the workplace at the DOL’s website. The poster is also available in Spanish.

The DOL has also published a single-page insert poster, which includes the NDAA amendment. The insert is also available at the DOL’s website. It’s available here for download and use.

Governor Minner has signed House Bill 283 into law.

This bill amends the Delaware Public School Employment Relations Act. As a result, interest arbitration will now be used to resolve impasses in collective bargaining between Delaware public school districts and their organized employees. Binding interest arbitration replaces non-binding “fact finding.”

Under binding interest arbitration, an arbitrator determines the final terms and conditions of employment by selecting one of the parties’ “last, best, and final” offers. This process has been used in negotiations involving other Delaware public entities for several years.

The arbitrator looks at seven factors in determining whether to accept the employer’s or the union’s offer:

(1) The interests and welfare of the public.

(2) Comparison of the wages, salaries, benefits, hours and conditions of employment of the employees with other employees performing the same or similar services or requiring similar skills under similar working conditions in the same community and in comparable communities and with other employees generally in the same community and in comparable communities.

(3) The overall compensation presently received by the employees.

(4) Stipulations of the parties.

(5) The lawful authority of the public school employer.

(6) The financial ability of the public school employer based on existing revenues, to meet the costs of any proposed settlements

(7) Such other factors which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, binding interest arbitration or otherwise

With the exception of paragraph (6) of above, no single factor in subsection, shall be dispositive.

Page D1 of today’s Wall Street Journal reports that:

A spike to record levels in pregnancy-discrimination complaints to regulators suggests more women are speaking up about suspected workplace bias.

Pregnancy-bias complaints recorded by the Equal Employment Opportunity Commission surged 14% last year to 5,587, up 40% from a decade ago and the biggest annual increase in 13 years.

And that “may be only the tip of the iceberg,” an EEOC spokesman says. The agency also received 20,400 pregnancy-bias inquiries at its call center last year, the center’s first full year of operation; that doesn’t include thousands more walk-ins asking about the same topic at fair-employment offices. An advocacy group, 9to5, National Association of Working Women, also is seeing an increase in pregnancy-bias calls on its hotline.

I have seen a huge surge in pregnancy discrimination claims in my practice as well. The WSJ attributes the groundswell to “both changing demographics and a new activism among mothers.” Employees’ awareness of the law in this area may have been further heightened by the EEOC’s Guidance on Discrimination of Workers with Caregiving Responsibilities, issued in May of 2007. The EEOC’s guidance devoted considerable attention to pregnancy discrimination claims.

I will be speaking on pregnancy discrimination at several upcoming seminars. Click on the links to learn more about opportunities to learn on this important topic: Pregnancy in the Workplace: Manage FMLA, ADA, and PDA Issues Audioconference on April 8 - learn about pregnancy discrimination from the comfort of your own desk! The Advanced Employment Issues Symposium on September 25-26 in Las Vegas, and October 16-17 in Nashville, TN offer additional opportunities to learn more about pregnancy discrimination.

This week, on Good Morning America, a feature segment ran about Bullying In the Workplace. The forums on the GMA website, where viewers can post comments about the show’s topic. There was an overwhelming response to the Bullying segment. So much response, in fact, that Tory Johnson, GMA’s Workplace Contributor, was invited back the next day to continue the discussion.

On Tuesday, the topic focused on how to spot a bully at work. On Wednesday, the discussion was aimed on how to handle a bully if you are being targeted. Both episodes were spot on. One of the best points I heard Ms. Johnson make was:

Document, document, document.

On Wednesday’s episode, Tory Johnson talked about documentation of the bullying as a survival strategy. Of course, in the world of the employment lawyer, nothing could be more true. One reason documentation can be so important is for your mental health. When you are on the receiving end of workplace bullying, you are likely to experience a great deal of self-doubt.

Bullying usually comes in passive-agressive forms. A roll of the eyes, a deep sigh, a whispered comment, or a mumbled expression of exasperation can all seem very normal when taken in isolation. Sure, most of us occassionally give in to the daily frustrations and take those feelings out on our co-workers and colleagues.

That’s why it’s not uncommon for targets of bullying to get push-back if they do report the behavior. Likely, they’ll get a response of, “Oh, that’s just her personality,” or, “He didn’t mean it, he was having a really tough day,” or, my personal favorite, “She’s like that with everyone.”****

Why don’t HR professionals and managers seem so determined not to believe that there is bullying on in their working environment? Because they’re people. People don’t like to get involved in personality conflicts. Inevitably, the manager will be on the “bad side” of at least one of the fighting employees. And let’s face it, nobody likes to be unpopular.

Documentation helps with both problems. First, by having a written record of the conduct, you won’t question yourself about the validity of your feelings. When it’s all set out on paper with dates and details, that chronology makes it clear that it is not just a series of isolated incidents, but a regular barrage of assaultive conduct.

Second, that documented chronology will force superiors to see the same picture that you’ve been seeing. To say to a manager, “Sarah is hurting my feelings,” might be effective–but it’s highly unlikely. But what if you said to that same manager, “Sarah has spent the last several weeks making inappropriate comments directed towards me. She has also spread untrue rumors to my co-workers about me, which has negatively affected my professional reputation. (Or, how about, “defamatory” instead of untrue?! Even better!!) When your manager wants examples of that behavior, you’ll have them.

And if the manager still doesn’t bite, that’s ok. Keep documenting. If for no other reason but to prevent that question, “Am I just being oversensitive?”

[****A sidenote on that last one: Employers, please, please, please, do not EVER use this as an “excuse” for an employee’s socially unacceptable behavior. If you would not want the comment made to your mother or to your spouse, then it should not be said in the workplace. Although it sure can feel like it sometimes, the workplace is NOT a battle zone. Save your combat gear for that Nintendo Wii.]

The Department of Homeland Security (”DHS”), has issued new procedures for employers who receive “no-match” letters. In Part 1 of this post, I talked about the state of the law before the new “Safe-Harbor” rule was issued. In this post, I’ll discuss the potential impact of the Safe-Harbor rule and why it is so important for employers.

Why Do Employers Need A Safe Harbor?
Over the past 2 or 3 years, DHS has developed evidence that most cases of social security number mismatches involve undocumented workers. However, in the text of its mismatch letters and on its website, the SSA cautions employers not to take any adverse action against employees based on a mismatch issue because there could be many innocent reasons for a mismatch. Another branch of the government, the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), also cautioned employers not to take action against employees based on SSN mismatch issues because OSC might interpret such action as discrimination in violation of the anti-discrimination provisions of Immigration Reform and Control Act of 1986 (“IRCA”).

Nevertheless, in the past 2 years, Immigration and Customs Enforcement (“ICE”), has been raiding employers that received no-match letters. ICE has even arrested and criminally prosecuted individual managers, accusing them of recruiting, harboring and knowingly employing illegal aliens. For example, in April 2007, DHS raided 40 plants in 26 states of a company called IFCO, apprehending 1,187 undocumented workers. DHS also arrested a plant manager and a regional manager on charges of conspiring to transport, harbor, and encourage undocumented workers to reside in the United States. The penalty for conviction is up to 10 years in prison. DHS intends to increase the fines for knowingly employing illegal aliens by 25%. Right now the fines are $2500 for a first offense and up to $10,000 for repeat offenses.

The number of criminal prosecutions for knowing employment of undocumented workers is rising and that will continue. There were 716 criminal arrests in fiscal year 2006, and the number increased in fiscal year 2007. In 1999 there were only 24 arrests.

What Does The New Rule Say To Do?
The first step the employer takes is to check its records for typos and similar errors. If any errors are discovered, the employer contacts the SSA to make sure that the correct name and social security number match the SSA records. Employers have 30 days from receipt of the no-match letter to take this step.

The next step is to ask the employees on the list about the discrepancies. If the employee says the information in the employer’s records is incorrect, the employer corrects its records and contacts the SSA to make sure the corrected information matches its records.

If the employee says the information in the employer’s records is correct, the employer has 30 days to ask the employee to contact the SSA about the discrepancy. The employee has 90 days from the date of receipt of the no-match letter to provide new information to resolve the discrepancy. If the employee does not provide new information, the employee has three days from the 90th day to provide new documentation that will enable the employer to prepare a new I-9 form as if the employee were a new hire.

The latest headlines of the local newspaper, the News Journal underscore what is becoming the latest trend in employment lawsuits: military service discrimination.

On Wednesday, March 26, an Army lieutenant colonel serving in in Baghdad filed a federal lawsuit alleging he was fired from the Delaware State Police in violation of state and federal laws that protect military reservists from discrimination and retaliation because of their military service.

45-year-old Lt. Col. Keith W. Janowski claims that he encountered harassment, discrimination and retaliation because of his duties and obligations “as a citizen-soldier in the U.S. Army Reserve” during his 16 years on the state police force. He also alleges that after his return from active duty in 2003, he asked for retraining in civilian searches but was denied. He was fired in 2005 for conducting a improper search and exercising poor judgment, allegedly because he missed a pack of cigarettes during a search of a person.

This lawsuit supports the national statistics that more and more military personnel are excercising their rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). As those employees return from active duty, employers face extensive and often confusing obligations imposed under USERRA. The law was enacted in 1994 to encourage civilian military service by attempting to eliminate the disadvantages employees face when called into service. The law governs employer’s responsibilities to employees during periods of military leave and upon return to employment.

Unlike many employment laws, USERRA applies to all employers, public and private, regardless of size. It requires you to grant unpaid leaves of absence for employees called into military service. Employees may elect to use accrued vacation pay, annual leave, or other accrued paid leave during military leave, but you may not require them to use it during that time. Upon returning from military service, USERRA grants eligible employees the right to reemployment.

Eligibility for Reemployment

Eligibility for reemployment under USERRA requires employees to meet the following criteria:

1. Notice. Employees must provide employers with advance notice of their military service obligation. The notice may be verbal or written and may be provided by a military officer. Many employers request that employees provide copies of induction documents, training notices, or other military orders. The advance notice requirement is waived if military necessity makes advance notice impossible or unreasonable.

2. Exclusions. Reemployment rights are available for absences of up to five years of cumulative military service. Many of the most common categories of military service for employees don’t count toward that five-year limitation period. For example, military service during a time of war or national emergency is exempt from the five-year period. President Bush declared a state of national emergency following the September 11, 2001, attacks and authorized mobilization of military troops.

3. More Exclusions. Military service in support of Operation Iraqi Freedom and Operation Enduring Freedom isn’t counted toward USERRA’s limitation period. Another exception you must be familiar with is the annual and weekend training required for National Guard members and reservists.

4. Disqualifying Discharges. Reemployment rights under USERRA don’t extend to an individual with a disqualifying discharge from military service. A disqualifying service discharge means (1) a separation from service with a dishonorable or bad-conduct discharge, (2) a separation from service under “other than honorable” conditions, (3) dismissal of a commissioned officer by court martial or presidential order, and (4) a “dropped from the rolls” separation caused by an absence without authority or civil imprisonment.

5. Reapplication Period. To maintain reemployment rights, an employee must report to work or apply for reemployment within a specific period of time determined by the length of military service. A written application for reemployment is unnecessary; an employee is required to inform his employer that the period of military service has been fulfilled. If the military leave is less than 31 days, the employee must return to work eight hours after returning home from completion of military service at the beginning of the first full regularly scheduled work period. For military leaves of absence between 31 and 180 days, the employee must submit an application to the employer within 14 days following the completion of military service. For leaves in excess of 180 days, the employee must apply for reemployment within 90 days of completing military service.

6. Inability to Return to Work. USERRA extends those time limits for up to two years if an employee is unable to return to work because of a service-related illness or injury. Any employee failing to report to work or reapply for employment within the appropriate time frames is subject to the employer’s policies regarding any unexcused absence from work.

Employer duties to reemploy

At the conclusion of military service, an employee is generally entitled to reemployment to the position she would have held or attained but for the period of military service. In that respect, USERRA is contrary to the concept of employment “at will” and affects your personnel decisions during the period of active military service. Not surprisingly, failure to reinstate a former employee following a period of military service is one of the most common complaints under USERRA.

Employees serving less than 91 days of military service must be reemployed in a position they would have attained but for the period of military service, provided they’re qualified for the position. If an employee isn’t qualified for the position after you have made reasonable efforts to qualify her, you must return her to the position held before military service.

Employees absent for military service longer than 90 days must be reemployed in the position they would have attained or in a position of comparable seniority, status, and pay, provided they’re qualified to perform the job. If a returning employee isn’t qualified for the position, you must make reasonable efforts to qualify her for the position. If those efforts fail, you must return her to the position held before military service or a position of comparable seniority, status, and pay.

If you’re reemploying an employee with a disability incurred or aggravated during military service, you must make additional efforts. First, you must make reasonable efforts to accommodate the employee’s disability so she may become qualified for the position she would have attained if continuously employed. If she isn’t qualified despite your reasonable accommodation efforts, she must be placed in a position of equivalent seniority, status, and pay as long as she’s qualified for the position or can become qualified for the position through your reasonable efforts. Last, if the employee doesn’t qualify for the equivalent position, she must be employed in a position that “most nearly approximates” the equivalent position in seniority, status, and pay.

Exceptions to reemployment rights

There are limited exceptions to the obligation to reemploy employees returning from military service. Reemployment isn’t required when doing so would be impossible or unreasonable, such as when a reduction in force during the leave period has eliminated the employee’s position.

Discharge protections

Once reemployed, USERRA affords returning servicemen and servicewomen protection from discharge without cause. The extent of that protection is based on the length of military service. Individuals reemployed after 181 days or more of military leave may not be fired without cause for a period of one year after reemployment. Individuals reemployed after 30 to 180 days of military service may not be fired without cause for six months after reemployment. There’s no protection against discharge without cause for individuals serving less than 30 days.

Discrimination and retaliation protections

USERRA prohibits you from discriminating against persons with past or present military obligations when making decisions relating to hiring, promotion, reemployment, termination, and employment benefits. You’re prohibited from retaliating against individuals who file complaints or exercise any right under USERRA.

Employee benefits

Under USERRA, employees on military leave are entitled to the same benefits provided to employees on other leaves of absence. For example, if you provide employees on Family and Medical Leave Act leave with continued health, life, or disability insurance or allow employees to continue to accrue vacation benefits, employees on military leave must be afforded the same benefits.

The commencement of military leave is a COBRA-qualifying event, and continued health insurance coverage is available to employees at their expense. On December 10, 2004, President Bush signed the VBIA into law, which expanded the continuation period for military families from 18 months to 24 months. The extended continuation period is effective for continuation elections made on or after December 10, 2004. If you haven’t already done so, you should revise your health plan administration to reflect the extended continuation period available for employees entering military service.

Retirement/pension benefits

USERRA contains expanded pension rights for eligible employees. Periods of military service may not be treated as a break in service for an employer-sponsored pension plan. For vesting and accrual purposes, the military service period is considered service with an employer. You’re required to make any pension contributions for employees returning from military service you would have made if they hadn’t been on military leave.

If you sponsor a “contributory” plan that offers benefits only when the employee makes contributions, returning employees must be given three times the military service period, not to exceed five years, to make up any missed contributions. You’re obligated to make matching contributions consistent with the amount contributed by the employee.

VBIA: notice of USERRA rights and duties

In addition to extending the health insurance continuation period from 18 to 24 months, the VBIA also requires you to notify present and returning employees of “the rights, benefits, and obligations of such persons and such employers” under USERRA. The notice requirement became effective on March 10, 2005, and can be met by posting a notice in the location other workplace notices are customarily hung. The U.S. Department of Labor’s Veterans Employment and Training Service (VETS) has created a poster that contains the notices required under the VBIA. A color copy of the poster, suitable for printing, is available at no charge on the department’s website.

USERRA technical assistance also is available from VETS, which can be accessed by calling (866) 4-USA-DOL or by visiting its website. at An interactive USERRA advisor is available online here.

The parents in the group might need to sit down for this story. . .

In a bizarre and frightening incident, a middle school girls’ softball coach at the Seaford School District apparently injected one of the girls on his team with an adrenaline-filled Epi Pen–not to save her life by combating an allergic reaction—but apparently in retaliation for lackadaisical play on the field.

The girl’s family is now suing the school district for failing to properly and thoroughly verify the coach’s background.

Hiring is one of the most important decisions any employer can make. A failure to carefully screen employees can not only result in adding underperformers to your workforce, it can result in exposure to theft, violence, and legal liability.

This recent incident in Seaford underscores the importance of a thorough and productive background check. But how do you get real, useful information in a world where many employers are advised to divulge only “name, rank, and serial number” of their former employees?

Tips for Conducting An Effective Background Check:

1. Get a release - the best way is to reduce the fear of a lawsuit. Get a release of liability from the applicant whose references you are checking, and provide it to the employer. Common sense dictates that the chance of a lawsuit will be substantially reduced when the potential plaintiff has already authorized the release and discussion of employment-related information.

2. Inform of Delaware’s reference check law - you should also tell your contacts about Delaware’s reference check law, which gives former, current, and prospective employers immunity from a lawsuit for providing references in “good faith.” Better yet, give them a copy of the law to review and provide to their legal counsel.

3. Say the password - most experienced HR professionals you contact will be just as frustrated as you are about the inability to get information about prospective employees. As a result, you might want to give them the opportunity to help you out and still sleep at night. Try asking whether the applicant is “eligible for rehire.” A negative answer might be just what you need to steer clear of an individual.

4. Find a secret source - another way to get information is to go directly to the applicant’s supervisor. That person will have the most information and will be more likely to provide it than the HR department. Of course, you want to prevent such a maneuver against your company, so make sure you constantly remind your own supervisors about your policies on background checks and that all inquiries should go through HR.

5. Go public - your high-school principal was right when he warned you that your youthful transgressions would be “on your permanent record.” Criminal arrest and conviction records are a matter of public record. They are not only public but also easy to get, at least for offenses committed in Delaware. A visit to the prothonotary (clerk) in the state courthouse located in Wilmington, Dover, or Georgetown can get you free access to an applicant’s arrest and conviction record free of charge.

6. Visit cyberspace - another source of information is the Internet. Search engines like Google can scour the Internet for websites, newspaper articles, and postings by applicants. Similar checks on social networking sites like MySpace and Facebook can provide useful information as well. Use of such searches is becoming common. A 2006 survey by CareerBuilder.com indicated that 26 percent of hiring managers have used the Internet to collect information on applicants. Half of those managers said they had accessed personal information on social networking sites.

Yesterday, the local newspaper, The News Journal reported on an employment discrimination case that is currently in trial in the federal District Court in Wilmington, Delaware.

The plaintiff in the case is a 19-year veteran of the Wilmington Police Department who claims he was improperly demoted in retaliation for reporting offensive comments made by a supervisor. According to the officer’s attorney, he was demoted and denied transfers after he reported that another officer said that “all Puerto Ricans have low riders and fuzzy dice hanging from their mirrors” and that “all Puerto Ricans and Mexicans are alike.”

The City of Wilmington, the named defendant in the case, alleges that the comment was taken out of context and that the demotion and denials of transfers were the result of the officer’s poor work performance.

Retaliation claims like this are clearly on the rise. According to EEOC data, retaliation claims have increased by approximately 100% during the period 1992-2006! (Link to a previous post on the rapid increase of charges filed with the EEOC here). Indeed, retaliation claims now comprise 30% of the total charges filed.

What steps can an employer take to miminimize the risks of retaliation claims?

First, it’s important to have a policy prohibiting retaliation your harassment and discrimination policies.

Second, make clear in your policies that suspected retaliation must be reported and provide employees several avenues through which they can do that.

Third, make sure all supervisors and managers know that it’s unlawful to retaliate against employees for protected activity, which includes formal charges of discrimination as well as internal complaints about harassment or discrimination.

Fourth, if you receive complaints about unlawful activity or are charged with discrimination, protect the source of those complaints as much as possible. One of the best defenses to a retaliation claim is that the person who supposedly retaliated wasn’t even aware of the charge or complaint in the first place. Of course, in many situations, the employee’s immediate supervisor must be told about a complaint so an adequate investigation can be conducted.

Fifth, treat the complaining employee as if nothing has changed. Remember, however, that filing a charge or internal complaint doesn’t insulate the employee from future disciplinary action

Even split into two posts, this is still a long entry, but it’s better than reading the even longer document ( (44 pages!) on this issue.

Employers & Illegal Immigrants
The U.S. Department of Homeland Security (“DHS”) is the agency that issues “no-match” letters. If you’re an employer and you have never received a “no-match” letter from the Social Security Administration (“SSA”), consider yourself lucky and read on anyway. If you have gotten one or more of these letters, or if you suspect that at least 0.5% of your workforce consists of undocumented workers, read on.

In June 2006, DHS issued a notice that it intended to issue a rule designed to interfere with the ability of illegal immigrants to get jobs in America. Currently there are between 11 and 12 million illegal immigrants living in the U.S., and about 8 million illegal immigrants working here. Agriculture, service and construction are the industries that are believed to have the highest number of undocumented workers, but any company that has received mismatch letters from the SSA or a DHS “notice of suspect document” in the past should be paying close attention to this safe-harbor rule, issued by DHS in August 2007.

The rule is called “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.”

What’s A No-Match Letter?
Employers file W-2 reports with the IRS every year reporting their employees’ wages and withholdings. The reports include employees’ names and social security numbers (“SSNs”). The Social Security Administration (“SSA”) issues SSNs and has a database of the numbers, and the name and earnings associated with each number. Each year, the SSA sends letters to employers who have at least 10 employees whose names and social security numbers don’t match the names and numbers in the SSA’s database, if the mismatches constitute more than 0.5% of the W-2s in the employer’s annual wage report.

That letter is called a “no-match” letter.

What Was The No-Match Process Before The New Rule?
Action by the employer to correct mismatches was voluntary. In the no-match letters, the SSA simply asked the employer to check its own records for accuracy and report back if it found the reason for the problem. If the employer did not find a discrepancy in its own records, the employer was advised to tell the employee that there was a problem and encourage the employee to go to the social security administration to get the problem corrected.

Stay tuned for more. Part 2 will address what the safe-harbor procedure provides and why it’s so important to you.

The Los Angeles Times recently reported that more than two dozen UCLA Medical Center employees are in the hot seat for illegal