HR Update- Immigration Updates and Discrimination Case
Thursday, September 6th, 2007Suit Seeks to Stop ‘No-Match’ Rule
A group of labor, civil liberties, and immigrant rights organizations filed a federal lawsuit Aug. 29 to stop implementation of the Homeland Security Department’s “no-match” regulation, saying the rule oversteps the boundaries created by Congress for worksite immigration enforcement. The lawsuit—filed by the AFL-CIO, the National Immigration Law Center, and the American Civil Liberties Union—says that DHS and the Social Security Administration lack the authority to use tax data to enforce immigration laws; therefore, holding employers liable for immigration law violations because they received a “no-match letter” is beyond the power of the agencies (AFL-CIO v. Chertoff, N.D. Cal., docket number unavailable, 8/29/07).
The Judge in this case has placed a hold on the plan to send out the new letters until at least October 1, 2007. The judge has called this a cooling off period needed to examine the issue entirely. At this time the plan to send out the new letters has not been cancelled, the plan is at this time delayed.
At the time Sec. Chertoff announced the new rules he was asked about the new rules being legal. In responding to the question Sec. Chertoff said that DHS has thoroughly examined the legality to the changes and was sure that the new rules would stand up to scrutiny.
We continue to believe that the best practice for every employer is to make an effort to verify that the information provided by new employees is verified as accurate and confirming of the new employee’s eligibility to legally work in the U.S.
We will continue to provide updates on this subject.
Following is a case that was presented in the August 22, 2006 BNA Bulletin to Management:
Circuit Court Says PIP (Performance Improvement Plan) Alone Is Not Adverse Act
A sales manager failed to establish her discrimination claims because the potentially discriminatory employment actions she identified were untimely, and her discharge was unconnected to those actions, the U.S. Court of Appeals for the Tenth Circuit held Aug. 8 (Haynes v. Level 3 Commc’ns LLC, 10th Cir., No. 04-1307, 8/8/06).
The court affirmed a lower court’s ruling in favor of Level 3 Communications on claims brought by Linda Haynes, but said, “We disagree with the district court’s interpretation of our precedent and expressly join our sister circuits in holding a PIP, standing alone, is not an adverse employment action.” The court added, “A written warning may be an adverse employment action only if it effects a significant change in the plaintiff’s employment status,” and Haynes presented no evidence that her performance improvement plan had such effects.
Claimed Supervisor Favored Males
Haynes was a “carrier sales manager” in Level 3’s San Francisco office. Paul Larson was her supervisor. Haynes alleged that, shortly after he became the carrier products unit supervisor, Larson began to recruit 31-year-old Shane Quivey from the Internet products unit. After Quivey arrived, Larson treated him with a marked preference compared to his female subordinates, Haynes claimed.
According to Haynes, Larson also gradually took customer accounts away from employee Mary Vargo and gave them to Quivey. When Vargo was unable to meet her sales quota and complained, Larson gave her a poor performance evaluation and placed her on a performance improvement plan. Vargo resigned. Haynes alleged that Larson then began giving her accounts to Quivey.
Haynes’s health began to decline, and Larson demanded she come to work against her doctor’s advice. She alleged he began to criticize her to customers and management. Haynes said she was unable to meet her sales quota, was informally counseled regarding her performance, and also was placed on a performance improvement plan.
She was on medical disability leave June 18, 2001, when she was let go in a reduction in force. Larson and his supervisor also were terminated in the RIF. Scott Roberts, senior vice president of sales and marketing, made the RIF decisions. One of the criteria he used was whether an employee was on a performance improvement plan.
Haynes filed a charge with the Equal Employment Opportunity Commission on Oct. 11, 2001, and later sued in federal court, asserting discrimination and retaliation claims under Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. The trial court dismissed her claims, and she appealed.
Proof on Timely Acts Lacking
The Tenth Circuit noted that Haynes’s discharge while she was out on disability leave was the only adverse action that occurred within 300 days of when she filed a charge with EEOC and it was based on the neutral fact that she was on a performance improvement plan and all employees on a such plans were included in the RIF. Moreover, she could not use other time-barred acts of alleged bias, such as her allegations that customer accounts were removed from her portfolio and assigned to a male co-worker, to prove that her discharge was discriminatory, it held.
The court said Haynes “does not claim that a PIP was outside standard operating procedure to address a failure to meet her sales quota. Neither has she alleged that Level 3 did not evenhandedly include all employees currently on a PIP in the RIF. Finally, Haynes presented no evidence that any other employees on a PIP were spared in the RIF. As a result, she fails to demonstrate any timely inference of discrimination in her inclusion in the RIF.”
As the case above points out Level 3 was able to avoid being guilty of discrimination because of their advance plan to treat all employees currently on PIPs (at the time of the RIF) on a equal basis.
We cannot emphasize enough the importance of equal treatment. Even though the above case does not deal with everyday policy issues employers must decide who to cope with employees who violate policy and treat all violators equally. Employees must understand that an employer’s policy guide is a document that must be seriously considered. When policies are violated an employer must have the will to deal with violators in a firm, fair, and even manner. This type of behavior on the part of employers provides incredible protection when an employee claims to have been treated in an unfair and uneven manner when a policy has been violated.
It is true, sitting down with an employee to discuss policy violations or other concerns can be unsettling. However, ultimately it is completely fair when each and every employee understands the expectations of their employer and is informed when he or she has fallen short. Generally, employees who are apprised of their short comings will make efforts to overcome the noted deficiencies and go on to be valuable contributor to the business.
We appreciate the time our valued clients take to read our weekly updates. We appreciate your business and acknowledge your part in our success.
Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.