Vol. 3 No. 2 Summer 1997 Braun Consulting News Page 2
button Employment Verification Under Washington Immigration Law
     The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (Public Law 104-208) contains several new provisions that affect employers. Among those changes, Title IV of the law includes a variety of provisions that are listed as follows:       INS Investigations: 300 new inspectors will be added to the INS workforce in each of the next three years (900 total).
     Opportunity to Correct Good Faith Errors: If an employer makes a good faith attempt to comply with the verification requirements but, in doing so, makes a technical or procedural error, the employer will nevertheless be deemed to have complied with the rules so long as
(1) once notified of the error, the employer corrects it within a specified time period and
(2) the employer is not guilty of engaging in a pattern or practice of violating the verification requirements.

Unfair Immigration-Related Employment Practices

The law addresses two specific practices here:
     (1) an employer's request from a new employee for more or different documents than are required to confirm the employee's identity and work eligibility
     (2) an employer's refusal to honor documents that reasonably appear to be genuine
     Neither of these acts will now be considered an unfair immigration-related employment practice unless the act is done for the purpose or with the intent to unlawfully discriminate against the employee based upon citizenship status or national origin.

Fewer Documents to Verify Employment Eligibility

     The number and type of documents that may be used to establish an individual's identity and work eligibility have been reduced. Some details:
 To establish both employment authorization and identity, an individual may present one of the following: (1) a US. passport or (2) a resident alien card, alien registration card, or other document designated by the US. Attorney General, if the card or other document satisfies certain standards (including having certain security features).
check  To establish employment authorization, an individual may present one of the following: (1) a social security card or (2) other documentation that the US. Attorney General has found, by regulation, to be

check The US. Attorney General is now authorized to prohibit or place conditions on the use of a document for verification purposes if she finds, by regulation, that the document does not reliably establish employment authorization or identity or is being used fraudulently to an unacceptable degree.

Pilot Programs for Employment Eligibility Confirmation

     New law provides for three pilot programs. One is based upon an enhanced telephone verification system, one based upon the waiver of certain paperwork requirements if an employee attests to being a US. citizen, and one based upon the use of machine-readable documents. These programs will last four years.

button NLRB Protects Union Organizer "Salts" Being Used in Nonunion Operations
     Current union organizing campaigns are increasingly using union "plants", or "salts" as a way to get inside a nonunion business. Sometimes referred to as "salting", a paid union representative applies for a position and announces his affiliation with the union in hopes of creating an unfair labor practice charge. Both the Supreme Court and the National Labor Relations Board (NLRB) have given this organizing tactic their blessing, and the Board now acts swiftly to protect union organizers who apply to work for nonunion employers.

button Update on Union Organizing Plans
     AFL-CIO President John Sweeney recently released a 30-page report listing actions local unions should take, including the development of stronger organizing staffs, mobilizing members to help reach unorganized employees, and creating strategic organizing plans. The federation's goal is for its international unions and their locals to commit 30% of their budgets to organizing by the year 2000.
     Another new AFL-CIO program is targeted at the female workforce. This program is called "Ask a Working Woman", and is aimed at starting a national dialogue about the needs of working women. Millions of surveys will be distributed addressing issues such as health care, equal pay, flexible work schedules, child care, and retirement security. A later phase of the program calls for women AFL-CIO leaders to tour 20 cities and to meet personally with women at their jobs and in their homes. The survey results will be reported in September at an AFL-CIO national conference in Washington.

button Changes in FLSA?
     The House and Senate are considering proposals to amend the Fair Labor Standards Act (FLSA) to allow "comp time" in lieu of overtime pay, flexible schedules, and compressed workweeks.
     However, in February, the U.S. Supreme Court issued a decision that attempts to clarify an important exemption to the overtime rule. In Auer v. Robbins, the Supreme Court examined the "no disciplinary deduction" rule - this rule applies to employees that an employer treats as exempt under the "white-collar" exemption for FLSA's overtime requirements. Unanimously, the Court upheld the federal secretary of labor's interpretation of the rule in two areas: 1) its application to public sector employees and 2) its application to an employer that has a personnel policy that could (but will not necessarily) result in deductions from an exempt employee's pay for disciplinary reasons.
     The regulations allow deductions for disciplinary reasons only if the deduction is imposed as a disciplinary measure for violation of a safety rule "of major significance."
Consequences for Employers -
Two rules to remember:
1) unless and until Congress decides otherwise, the "no disciplinary deductions" rule applies equally to both private and public sector employees; and
2) an employees pay is "subject to" deductions if there is either an actual practice of making such deductions or an employment policy that creates a "significant likelihood" of such deductions.
     According to the Court, a "significant likelihood" exists only if the policy is clear and particularized - that is, it "effectively communicates" that deductions will be made in specified circumstances. This standard is probably not satisfied if the policy is vague or broadly worded and/or it is nominally applicable to a whole range of personnel, including both salaried and non-salaried employees.
     Does this new standard really clarify anything? To be on the safe side, employers should:
check review their personnel policies
check eliminate any language that could be interpreted to allow disciplinary pay deductions for salaried employees
check take steps to ensure that such pay deductions do not actually occur.

    From: Washington Employment Law Letter,
    April 1997 Vol. 4, No. 3

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