Issue 1 - 2009

Employers often face situations in which employees call in and say that they can't appear for work because they have to take care of their sick child or children. This can become a frustrating scenario, particularly where the employee provides little or no advance notice. And, where there appears to be a pattern of these types of absences tied to weekends, holidays or other days off, employers are understandably tempted to discipline or even terminate the employee.

Employers also get requests from new parents for leaves of absence to "bond" with their new-born (or newly adopted or foster) children. When employees request a few days off intermittently, this bonding time can also frustrate smooth operations.

Employers need to proceed with caution when responding to employees who ask for time off because of child care issues because various California and Federal laws may be implicated in these situations. This article examines several possible legal implications.

The Family Leave Acts and Serious Health Conditions
The Federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) require employers with 50 or more employees to grant leaves of absences of up to four months per year to employees to care for their children with "serious health conditions." Both of these leave laws allow employees to take this leave on an "intermittent" basis. That means that an employee could take leave of one or two days per week for an entire year without exhausting his or her FMLA or CFRA leave entitlement.

In this type of situation, the employee will need to provide medical documentation of the child's serious health condition and the need for the parent's care (either for an extended period of consecutive days or on some intermittent basis). The leave laws require employees to consult with their employer in advance of planned medical treatment and give notice as soon as practicable for unforeseen time-off. If you have an employee who is regularly seeking days off to care for the same child with some sort of chronic problem, you should talk to the employee about these leave laws, obtain the medical certifications, and work with the employee to get as much notice as you can. Together with the employee you may be able to create a schedule that will allow you to mitigate the disruption caused by the leave.

California's Specific Time-Off Statutes Dealing With Child Care Issues
In the more common situation of "my child's sick today" - for minor, non-chronic illness - the FMLA and CFRA generally do not come into play. However, California's Labor Code section 233 will likely apply; and Section 233 applies to ALL California employers.

Section 233 requires that an employer allow employees to use half of their annual sick leave accruals "to attend to" family members with illnesses. (The number of days the employee can use for this purpose is the number of days of sick leave the employee accrues in six months; not half of the employee's accrued but unused sick leave.) Section 233 does not require the family member to have a serious illness or health condition. But, Section 233 does permit the employer to apply its regular sick leave provisions to employees taking leave to attend to a family member. (For example, if your policy requires that an employee take sick leave in full day increments for his or her own illness, you can apply that requirement to an employee who takes a day of sick leave to attend to his or her family member.) CAUTION: The Labor Code also specifically forbids an employer from counting a "Section 233" day off as an absence that can lead to discipline.

Bonding Leave For New Arrivals To The Employee's Family
The FMLA and the CFRA also require employers to grant leaves of absence for new parents to bond with their new child(ren). Bonding leave is available for biological parents, parents who adopt children and parents who have foster children placed in their homes.

Unlike leave to care for a child with a serious health condition (which can be taken intermittently without any minimum number of days or even hours of leave), with bonding leave, the employer CAN require the leave be taken in two week blocks, with two exceptions for shorter time periods.

Under both the FMLA and the CFRA, the employee needs to give advance notice of the request for bonding leave.

(Cautionary note: The rules allowing employers to impose minimum durations for bonding leave apply only to leave to bond with a newly-arrived healthy baby. If the leave is requested by the mother-employee or a spouse/domestic partner-employee to care for the mother's serious health condition or for either parent to care for the serious health condition of the baby, then the rules permitting the employee to take intermittent leave apply.)

Conclusion
A tangle of laws might apply to any specific request for a day off or leave of absence to deal with an employee's children. Employers need to get into the habit of responding to such requests with caution: A good response is to say something like, "Let me check on what we can do, and I will get back to you later today or tomorrow at the latest." Take the time to evaluate the request under the myriad of laws that might apply, determine if additional information is necessary and only then respond to the employee's request. When in doubt, either grant the leave or contact counsel. In addition, we recommend highly that employers - especially California employers - not terminate an employee for taking excessive leaves or days off without first reviewing the situation with a labor or employment law specialist.

1. Revised Form I-9 Mandatory As Of April 3, 2009.

   As of April 3, 2009, employers are required to use the revised Employment Eligibility Verification Forms (Form I-9), dated 02/02/2009, when verifying the work authorization of new employees and re-verifying the work authorization of current employees. The current version of the Form I-9, dated 06/05/2007, is no longer valid and employers who continue to use the 2007 version of the Form I-9 may be subject to civil penalties.

   The revised Form I-9 modifies the list of documents that can and cannot be used to verify identity and work authorization in the United States by removing three documents from List A of the List of Acceptable Documents and adding a few new documents to the list (e.g., certain foreign passports). Most significantly, employers may no longer accept any expired documents during the verification process.

   The revised Form I-9 may be downloaded from the U.S. Citizenship and Immigration Services ("UCSIS") website at www.uscis.gov. Paper copies of the new Form I-9 can also be ordered by calling USCIS at 1-800-870-3676.

2. Implementation of E-Verify For Federal Contractors Delayed Until May 21, 2009.

   E-Verify (formerly the Basic Pilot/Employment Eligibility Verification Program) is an online system operated by the Department of Homeland Security ("DHS") and USCIS. Participating employers can check the work status of new hires online by comparing information from an employee's I-9 form against Social Security Administration ("SSA") and DHS databases. For the majority of employers, participation in E-Verify is voluntary. The fate of the E-Verify requirement has been up in the air, as you will see below. Interestingly the $410B spending bill that President Obama signed in March contains an extension of funding for E-Verify sufficient to carry the program another six months.

   In June 2008, President Bush signed an Executive Order initiating the amendment of the Federal Acquisition Regulations ("FAR") to require government contractors to use E-Verify. The final rule implementing President Bush's Executive Order was published in November 14, 2008. Under the final rule, certain federal contracts awarded and solicitations must include a clause requiring the contractor and any covered subcontractors to enroll in the E-Verify program. Covered contractors and subcontractors must enroll within 30 calendar days of the contract or subcontract award date. Covered contractors then have 90 days from the date of the enrollment in the program to initiate verification queries for employees working on the contract and begin using the E-Verify system to verify employment eligibility for newly hired employees. After the 90-day "phase in" period for newly-enrolled federal contractors, covered contractors must initiate verification queries for all new hires within three business days of the new hire's start date. Covered contractors also must initiate verification queries for current employees who will be working on the federal contract. Covered construction contracts include prime contracts with a value above $100,000 and subcontracts with a value above $3,000. The requirement does not apply to contracts with performance terms of less than 120 days.

   Several groups brought a lawsuit challenged the final rule requiring the use of E-Verify. As a result of the lawsuit, implementation of the requirement to use E-Verify was delayed until February 20, 2009 to allow for a hearing on the merits of the legal challenge to the final rule. On January 27, 2009, the Department of Justice agreed to further delay the implementation of the requirement to use E-Verify until May 21, 2009.

   Unless the implementation of the rule is further delayed, federal contractors and subcontractors will be required to begin using the E-Verify system starting May 21, 2009. Contractors or prospective federal contractors are only required by the final rule to enroll in E-Verify if and when they are awarded a federal contract or subcontract that contains the FAR E-Verify clause. If a contractor is already enrolled in the E-Verify program and awarded a federal contract after May 21, 2009, the contractor will not be required to re-enroll, but will be required to update its profile in E-Verify to reflect it is a covered federal contractor. If a company has been enrolled in E-Verify for more than 90 days, the company is required to initiate verification queries for all new hires within three business days of their start dates, but may not use E-Verify to verify the employment of eligibility of existing employees until the company has been awarded a federal contract containing the FAR E-Verify clause. Only those companies that are awarded a contract or subcontract that includes the E-Verify clause can verify existing employees through E-Verify. Companies enrolled in the E-Verify program, but who do not qualify as federal contractors or subcontractors, may only use the E-Verify program to verify employment eligibility for newly hired employees, and only after the I-9 form has been completed.

3. Status of the "Safe-Harbor" Procedures for Employers Who Receive a No-Match Letter

   Background
   Under the Immigration Reform and Control Act of 1986 ("IRCA,") an employer with constructive knowledge that a worker is unauthorized to work in the United States, and continues to employ the worker, is subject to civil penalties. Each year, the Social Security Administration ("SSA") informs thousands of employers that certain employees' names and corresponding Social Security numbers provided on W-2 forms do not match SSA's records by sending "no-match" letters. Employers, however, have not been given clear advice from the federal agencies regarding their obligations once they have received the no-match letters.

   In August 2007, the DHS published a Final Rule setting out a "safe harbor" procedure for employers to follow when they receive a "no match" letter from the SSA that would limit the employer's risk of being found to have knowingly employed unauthorized workers. If the employer took the steps to verify the employee's eligibility to work in the United States described in the "safe harbor" regulations, the employer would not be deemed to have had constructive knowledge of an employee's ineligibility to work.

   Various parties filed suit seeking to enjoin the implementation of the August 2007 Final Rule shortly after the rule was issued. On October 10, 2007, the U.S. District Court for the Northern District of California issued a preliminary injunction in AFL-CIO, et al. v. Chertoff, et al. enjoining implementation of the rule and staying proceedings in the litigation pending the DHS addressing specific issues. Therefore, the "safe harbor" regulations are not currently effective.

   In March 2008, the DHS published a supplemental notice of proposed rulemaking to address the specific issues raised by the court in the preliminary injunction order. After considering the full record, including the comments received in response to the supplemental notice of proposed rulemaking, DHS has made adjustments to the cost calculations, finalized the additional legal analysis set out in the supplemental notice of proposed rulemaking, and determined that the rule should issue without change. In other words, the DHS republished the text of the August 2007 Final Rule without any substantive changes.

   Recent Developments
   On January 20, 2009, the White House issued a memo directing federal agency heads to consider delaying implementation of certain regulations to provide the new administration with an opportunity to review them, including the "safe harbor" regulations. After the memo was issued, the DHS filed a motion with the Northern District Court of California requesting a 60-day extension to file its next set of briefs in order to provide the new administration with an opportunity to analyze and review the regulation. The court granted the motion, and the DHS Secretary now has until April 10, 2009 to decide whether or not to support the previous administration's rule.

   Where Do We Stand?
   The "safe harbor" regulations are not currently effective; they are permanently on hold, pending the outcome of the federal litigation. At this point, we cannot predict whether the DHS will continue to support the new regulations under the new administration or whether the rule will survive the legal challenges in the pending District Court case. The uncertainty regarding the "safe harbor" regulations, however, does not change the fact that IRCA prohibits the employment of illegal aliens. IRCA also prohibits employing illegal aliens if an employer "should have known with the exercise of due diligence" that an individual was not authorized to work in the United States. Those employers that receive SSA "no-match" letters would be advised to take some action in response to those letters. At a minimum, such action should be to ask the employee, in writing, to verify that the number the company is using for him/her is correct. If the number is correct (e.g., no digits have been transposed), then either the SSA has made an error or the number is not valid for that individual. In that event, the company should recommend that the individual go to the SSA to try to work out the problem. Do remember that there is a law that says companies must report all wages earned under a valid social security number.

   For more information about any of these issues, please contact the shareholders at Simpson, Garrity, Innes & Jacuzzi, P.C. - Paul V. Simpson, Ronald F. Garrity, Laura E. Innes, Marc L. Jacuzzi-- at 601 Gateway Boulevard, Suite 950, South San Francisco, CA 94080, (650) 615-4860.