President Obama Signs Directive Expanding Whistleblower Protections

To the delight of many concerned about civil liberties and government accountability, President Obama recently issued a directive expanding rights of employees in the intelligence community who report waste, fraud and abuse[1].  These “whistleblower” protections have come into focus in light of the Julian Assange wiki-leaks scandal.  There have been numerous prosecutions in recent years under the Espionage Act[2].  Civil liberties groups expressed concern for the rights of intelligence community workers.

The directive applies to employees serving in the Intelligence Community, particularly the Central Intelligent Agency, Defense Intelligence Agency and National Security Agency, or employees who are eligible for access to classified information.  It protects the rights of the aforementioned employees, mandates review procedures, and emphasizes agency accountability.  Some of the key elements of the directive include:

  • Prohibits retaliation of a protected disclosure by an Intelligence Community employee
  • Prohibits retaliatory actions against employees’ security clearances and other personnel actions
  • Requires each agency to implement a review process and consistent due process rights
  • Provision of appeal rights
  • Requirement of agency programs for outreach, education and counseling on new rights.

Despite the directive, a chorus of groups has called for great employee protection and more action from Congress.  It is in Congress’s discretion to statutorily enact President Obama’s directive and expand the workers covered by the directive.

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E-Verify and Its Implications for Employers and Foreign Employees

E-Verify is an Internet-based employment authorization verification system operated by the United States Citizen and Immigration Services (USCIS) and the Social Security Administration.  The system allows employers to confirm the eligibility of newly hired workers by comparing information from the worker’s Form I-9 with information in the Department of Homeland Security and SSA databases.

In an effort to reduce the incentive for employment-related illegal immigration, on September 21, 2011, E-verify was approved as a nationwide mandate under the Legal Workforce Act. Though Congress has taken steps to develop a reliable and accurate system for employers to verify the work eligibility of their workers, numerous federal agencies have taken the initiative to improve E-verify and prepare it for mandatory implementation.

At the forefront of the reform, USCIS and the Social Security Administration launched a nationwide “Photo Screening” and “Self Check” service.  Photo Screening is a supplemental verification tool for employers to compare a worker’s photos in certain documents to those stored in government databases. Photo Screening is only activated when a worker presents a permanent resident card or employment authorization card for I-9 purposes. For that reason, the tool is available only in about 4 percent of cases and has improved E-Verify’s ability to detect fraudulent documents by only about 0.2 percent.

Alternatively, Self Check is a free, voluntary and Internet-based feature that allows individuals in the United States to check their own employment eligibility status before formally seeking employment. If Self Check works as expected, it will greatly benefit workers by providing meaningful access and transparency to the E-Verify process. It will also help prevent tentative non-confirmations — or TNCs — that could otherwise cause workers to lose their jobs, even if only temporarily. It may even help reduce employers’ administrative burdens resulting from TNCs.  However, Self Check does not substitute for employers’ I-9 compliance obligations. Employers may not require employees to use Self Check, and employees who receive “possible mismatches” through Self Check are not obligated to take corrective action. Though helpful, Self Check and Photo Screening are not a cure all, and do not fully prepare E-Verify for nationwide mandatory implementation.

Implications

The Government Accountability Office (GAO) recommends further development for E-Verify after a 2011 GAO report confirmed that E-Verify remains vulnerable to identity theft and employer noncompliance.  Further the GAO recognizes, E-Verify enhancements such as Self Check do not address the complicity of dishonest employers in identity-fraud schemes or detect employers’ failure to screen some or all of the workers they hire.  In addition to inaccuracies, Self Check creates disproportionate disadvantages to low income and minority users who do not have internet access. Furthermore, because of the “identity assurance quiz” which uses background credit information, if a user lacks a U.S. credit history, he or she will not be able to proceed to the employment verification phase of Self Check.

Until all of these issues are addressed and E-Verify’s reliability and accuracy are improved, mandatory nationwide implementation would risk harming numerous employers and authorized workers, and may do little to prevent unauthorized workers from entering the U.S. labor market.

 
 
Immigration Law is a complex area of the law and, thus, the above post should not be construed as legal advice.  If you have any questions or would like more information, please contact Dhar Law LLP at (617)880-6155 or wassem@dharlawllp.com

Employment & Immigration Law: Illegal Alien’s Immigration Status Irrelevant to FLSA Wage Dispute

Employees’ immigration status was irrelevant to their claim seeking unpaid overtime and minimum wages under the Fair Labor Standards Act (FLSA). Jin-Ming Lin v. Chinatown Restaurant Corp., 771 F. Supp. 2d. 185 (D. Mass. 2011)

Summary: Upon filing of the above claim in a class action, the Defendant restaurant group sought an order compelling written discovery information regarding the Plaintiff’s immigration status as well as information regarding the class.  Rejecting the Defendant’s contention that illegal aliens cannot recover unpaid wages, and by extension cannot represent a class seeking unpaid wages, the District Court held that such information was irrelevant to a claim for wages under the FLSA.

Discussion: This was an issue of first impression for the Court and hotly debated in other circuits given a US Supreme Court ruling in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), that held that the National Labor Relations Board did not have authority to award back pay to illegal aliens who had been terminated in violation of the National Labor Relations Act.  Rejecting all of the rationales of other courts for concluding that immigration status is irrelevant under the FLSA, the Court nevertheless held that immigration status has no effect in the proceedings.  The Court noted that the decision to award back pay in Hoffman was discretionary and that such discretion needed to be exercised in light of other federal policies.  In contrast, the award for unpaid wages under the FLSA was not discretionary but a statutory entitlement awarded when the claimant adequately makes the necessary showing.  Given that immigration status was not relevant to such a showing, it did not matter in this case.  Furthermore, the Court stated that any conflict between federal statutory policies arising from awarding unpaid wages to illegal immigrants should be dealt with by Congress, not the judges.

Practice Pointer: When remedies for unpaid wages are a result of statutory provision, so long as that statute or provision does not require a showing of immigration status, or even other factors, it need not be disclosed during discovery or trial.  It is simply irrelevant to the proceeding.

No Tipping Policies under the Massachusetts Law

Massachusetts Tips Act does not bar employers from instituting a no-tipping policy Meshna v. Scrivanos, 2012 WL 414476 (Mass. Super. 2012).

Summary:  The Superior Court held that no statute prohibits employers from adopting and enforcing a policy that prohibits employees from accepting tips from customers.  Wait Staff employees of a Dunkin’ Donut brought this action against the franchisee-owner who instituted a policy that required employees to return any tips to the customers who left them.  One of the main issues was whether G.L. c. 149, §152A(b), also known as the Tips Act, prohibited employers from instituting a no-tip policy for their employees and patrons.  Court held that the language of the Tips Act does not explicitly prohibit employers from adopting such policies and there was no valid reason to adopt a broader interpretation of the statute.

Discussion:The language of the statute forbids employers from requiring or accepting payment from the tips collected by its employees but it does not specifically state that employers are forbidden from instituting a no-tipping policy.  Although the Court indicated that a broader interpretation prohibiting such a policy may be proper when customers of the establishment have a reasonable expectation that their tips would go to the employees, there was nothing in the statute or its legislative history suggesting that employers are prohibited from enacting a “policy that is clearly and conspicuously announced, so as to preclude any such reasonable expectation.”  The Court further recognized that employers may have a legitimate interest in adopting a no-tipping policy, such as preventing undue favoritism or unfair pressures.  The Court noted that employers may also decide that tipping is inconsistent with the desired atmosphere of the establishment or that accounting for the tips may cause undue administrative burden.  Finally, the Court emphasized that even if such interests do not conflict with the Tips Act, a no-tipping policy must be “clearly and effectively announced to defendant’s customers, such that they could not reasonably believe that money left as tips would benefit employees.”

Implications: This case is the first to directly address the issue of no-tipping policies.  The employer bears the responsibility of effectively communicating this policy to its customers.  Although this case law applies generally to private sector service employees, it does not apply to public employees, as G.L. c. 248A prohibits them from accepting any gratuities.

Employment Discrimination: TSA Worker’s Discrimination Claim Barred By Federal Statute Preemption

Aviation and Transportation Security Act precludes causes of action under the Rehabilitation Act. Field v. Napolitano, 663 F.3d 505 (1st Cir. 2011)

Summary: The First Circuit held that a disgruntled Logan Airport security screener could not bring a discrimination claim against the Transportation Security Administration (“TSA”) under the Rehabilitation Act. Mr. Field was a security screener at Logan Airport who suffered a diabetic ulcer on his foot, preventing him from fulfilling his regular job functions. Despite adjustment of his role at the airport, Mr. Field did not report to work for several months and as a result he was terminated. First Circuit affirmed the dismissal of his claims of discrimination and retaliation, ruling that the Aviation and Transportation Security Act (“ATSA”) precluded a cause of action under the Rehabilitation Act.

Discussion: The ATSA was enacted along with the formation of the TSA as a response to the 9-11 terrorist attacks. The ATSA gives the Under Secretary of the Department of Homeland Security a wide degree of discretion to create and enforce employment standards for airport security screeners. Pursuant to the language of the ATSA “notwithstanding any provision of law,” the TSA Administrator may hold security screeners to a standard much higher than those set out in the Rehabilitation Act. Specifically, the ATSA calls for a more heightened physical requirement such as the ability to distinguish colors and to lift baggage weighing seventy pounds. The ATSA took the position that hiring and retaining those employees who fall below the heightened standards would be unsafe for the person, other employees, and the public. In light of this policy choice, the First Circuit held that the disparity in employment standards between the ATSA and the Rehabilitation Act must be resolved by allowing the ATSA’s employment standards to trump that of the Rehabilitation Act in order to allow the TSA to carry out its objectives. Therefore, Mr. Fields was prevented from bringing a discrimination claim under the Rehabilitation Act against the TSA because he had fallen below the ATSA’s heightened standards. As for the protection normally afforded of employees with disabilities, the First Circuit was satisfied that the TSA’s directive allows employees to request reasonable accommodation as long as they meet the ATSA’s employment standards for security screeners.

Implications: The First Circuit ruled in accordance with every other circuit that has tackled the issue of the relationship between the ATSA, the Rehabilitation Act, and airport security screeners. In addition, the Court noted that the ATSA might preclude a cause of action under other statutes as well, such as the ADEA. This means that even if another statute affords a cause of action, the claim will likely be precluded if the action is inconsistent with the ATSA and its mandates.