March 2013 Volume XII No. 3 Taking Care of Business
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Employment Decisions Based On An Employee’s Status As A Family Caregiver Can Implicate Federal Anti-Discrimination Laws

Most employers are aware of federal laws, and state-based counterparts, that prohibit discrimination in employment based on sex, race, disability, age, and other protected categories. Most employers are also familiar with the federal Family and Medical Leave Act (FMLA). However, many employers may not be aware that while there is no federal discrimination law prohibiting discrimination based on an employee’s need to act as caregiver to a child, spouse or parent, employers who make employment-related decisions based on a person’s status as a caregiver may risk violating one, or more, employment discrimination laws. Further, employers who retaliate against employees in response to requests for leave or other accommodations related to their caregiver status may face claims under the anti-retaliation provisions of federal and state anti-discrimination laws.

According to research conducted and analyzed by the American Association for Retired Persons (AARP) and the Center for WorkLife Law at the University of California Hastings College of the Law, approximately forty-two percent (42%) of all U.S. workers has provided care for an elderly parent or relative in the last five years. As the baby-boomer generation ages, the number of elderly parents requiring care is expected to continue to grow steadily. Additionally, because a significantly larger percentage of women are employed outside the home today than several generations ago, a larger number of female employees are seeking leave for pregnancy and childcare requirements, and working fathers are increasingly in need of greater flexibility in the workplace to assist with family childcare needs. This changing landscape of family responsibilities challenges traditional methods of operation for many employers, and the failure to recognize these changes and adapt policies and practices can result in charges of employment discrimination, even in the absence of specific laws protecting family caregivers.

There are numerous federal statutes, and accompanying state laws, that protect against discrimination in employment, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act, and others. These laws prohibit discrimination in employment on the basis of a person’s sex, race, age, and/or disability status, along with other classifications. While none of the protected classes covered by these laws include an employee’s status as a family caregiver, caregiver discrimination often takes the form of discrimination based on a person’s status as a member of a protected class. Consider the following examples:

A female employee requests, and is granted, leave to care for an elderly parent suffering from a permanent and disabling illness. A male co-worker, whose father has suffered from Alzheimer’s for years, requests leave to care for his father, who is progressing toward the end stages of the disease. The male employee is denied leave because his supervisor believes that the male employee’s wife, who does not work, should be able to provide the necessary care.

An employer decides not to hire an applicant that it has identified as most qualified for a position because it has learned that the applicant has caregiving responsibilities to his elderly mother. The employer hires a less qualified candidate with no caregiving responsibilities, but invites the best qualified applicant to reapply if his caregiving responsibilities change.

An employee is granted intermittent leave under FMLA to care for a parent who has been rendered permanently disabled. Her supervisor regularly informs her that her leave is hurting the company and, after the leave is exhausted, her performance is critiqued more carefully than other employees and she is ultimately fired for poor performance.

A female employee returns to work after having a child and, after resuming her prior job duties for a time, is transferred to a position with a smaller time commitment, which also provides fewer advancement opportunities. She is told by her supervisor that the transfer was made to allow her to spend more time with her new child and to accommodate the demands of motherhood. The employee had not requested any change in her responsibilities or time commitments at work.

Each of the foregoing examples comes from a real case or from the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing federal anti-discrimination laws. In each of the above examples, the employers actions were motivated by the employee’s caregiving responsibilities, but also violated a federal anti-discrimination statute. In the last example, even an employer with seemingly good intentions, to allow an employee to spend more time with her family, could be found to have discriminated based on a stereotypical assumption about a female’s caregiving responsibilities.
  1. Incorporate caregiver discrimination into the company policy against discrimination based on membership in a protected class, and clearly define “caregiver” in the policy to avoid confusion over scope.

  2. Train managers and supervisors on the overlap between existing protected classes and the risk of violating federal anti-discrimination laws by making decisions based on caregiver status.

  3. Clearly define job requirements based on the job-specific requirements and functions of a position to reduce the risk that a hiring decision will be made based on caregiver status, and focus solely on the applicant’s qualifications vis a vis the defined requirements and functions when making hiring decisions.

  4. Encourage, to the extent feasible, the use of flexible scheduling to allow employees who are caregivers greater flexibility to serve that function while also completing their work. For hourly employees, take steps to ensure predictability in scheduling so that caregiver employees can make alternative arrangements for care when needed.

  5. Consider the implementation of recruiting practices designed to target individuals who are seeking to reenter the workforce after serving in a full time caregiver role.

  6. Clearly document employment-related decisions to ensure that explanations and bases for decisions are available if needed to defend against future claims of discrimination.

Most employers have been aware for years of the need to take steps to avoid discriminating against classes of individuals protected by federal anti-employment discrimination statutes and their state counterparts. While employees who are also caregivers are not a defined protected class under federal law, employers must be extremely cautious when making employment-related decisions that implicate a person’s status as a caregiver. If you have questions about this article, family caregiver discrimination, or other employment-related matters, please contact us at http://www.hwelaw.com.


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New I-9 Form Necessary for New-Hires

U.S. Citizenship and Immigration Services recently announced the newly revised Employment Eligibility Verification form, Form I–9. Employers are required to use the I-9 Form to verify the identity and employment authorization eligibility of their employees. The revisions to Form I–9 contain formatting changes and the inclusion of additional data fields. To utilize best practice, employers should begin using the new Form I-9 with revision date 03/08/13 immediately for all new hires. To ensure the correct form is utilized, the revision date is on the lower left of the new form, which reads “(Rev. 03/08/13)N.”

Employers are required to complete Form I-9 for all newly-hired and re-hired employees to verify their identity and authorization to work in the United States. Employers should begin utilizing the new form, which can be obtained at: http://www.uscis.gov/files/form/i-9.pdf and is attached hereto, by May 7, 2013.

I. Background
Employers and certain agricultural recruiters and referrers are required to verify on Employment Eligibility Verification form (Form I–9) the employment authorization and identity of each individual they hire for employment in the United States. Form I–9 contains three sections:

Section 1: The purpose of Section 1 of the form is to collect, at the time of hire, identifying information about the employee (and preparer or translator if used). Furthermore, this section allows the employee to attest to whether he or she is a U.S. citizen, non-citizen national, lawful permanent resident, or alien authorized to work in the United States. The employee must also present documentation for review evidencing his or her identity and authorization to engage in this employment.

Section 2: The purpose of Section 2 of the form is to collect, within 3 business days of the employee’s hire, identifying information from the employer and information regarding the identity and employment authorization documentation presented by the employee and reviewed by the employer.

Section 3: The purpose of Section 3 of the form is to collect information regarding the continued employment authorization of the employee. This section, if applicable, is completed at the time that the employee’s employment authorization and/or employment authorization documentation recorded in either Section 1 or Section 2 of the form expires. This section may also be used if the employee is rehired within 3 years of the date of the initial execution of the form and to record a name change if Section 3 is otherwise completed.

Employers are required to maintain Forms I–9 for as long as an individual works for the employer and for the required retention period for the termination of an individual’s employment. This timetable is either 3 years after the date of hire or 1 year after the date employment ended, whichever is later. Also, employers are required to make their employees’ Forms I–9 available for inspection upon request by officers of U.S. Immigration and Customs Enforcement, the Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices, and the Department of Labor.

Failure of an employer to ensure proper completion and retention of Forms I–9 may subject the employer to civil money penalties and criminal penalties.

II. Changes to Form I–9
The newly revised Form I–9 makes several improvements designed to minimize errors in form completion. The key revisions to Form I–9 include:

- Adding data fields, which includes the employee’s foreign passport information (if applicable), telephone and email addresses.

- Improving the form’s instructions.

- Revising the layout of the form.

- Expanding the form from one to two pages (not including the form instructions and the List of Acceptable Documents).

Employers do not need to complete the new Form I–9 (Rev. 03/08/13)N for current employees for whom there is already a properly completed Form I–9 on file, unless re-verification applies. Unnecessary verification may violate anti-discrimination provisions.

Conclusion
Employers should begin utilizing the new Form I-9 with the revision date 03/08/13 for all newly-hired and re-hired employees to verify their identity and authorization to work in the United States by May 7, 2013. To ensure the correct form is utilized, the revision date is on the lower left of the new form, which reads “(Rev. 03/08/13)N.” In order to avoid any potential issues, Employers should begin utilizing the new form immediately for all new and re-hired employees.

(The complete statement issued by the U.S. Government can be read at: http://www.gpo.gov/fdsys/pkg/FR-2013-03-08/pdf/2013-05327.pdf)

If you have any questions, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.


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