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FMG Law Blog Line

Archive for January, 2014

NLRB ABANDONS NOTICE POSTING REQUIREMENT

Posted on: January 14th, 2014

By: Jonathan Kandel

The National Labor Relations Board (NLRB) has given up on its attempt to require every employer to post notices regarding employee rights under the National Labor Relations Act (NLRA).  As previously reported on this blog, the NLRB’s requirement was struck down by two different federal appellate courts: Court Invalidates Portions of NLRB Notice Posting Rule, Fourth Circuit Voids NLRB Posting Rule.  The NLRB recently announced that it will not seek Supreme Court review of the two decisions invalidating the rule.  This announcement is good news for all employers, especially non-unionized employers. This decision does not affect federal contractors and subcontractors, who are subject to a separate NLRA posting requirement under Executive Order 13496.

Social Media in Law Enforcement – The Good and the Bad?

Posted on: January 10th, 2014

By: Sun Choy

It was only a matter of time before the explosion of social media made its way into law enforcement. I read an interesting article in Forbes about the first police department in the United States to launch a Weibo account. What’s a Weibo account? It’s a Chinese “microblogging system similar to Twitter.” The hope is to use the service to promote communication with local business owners through their native language. With increasing ethnic diversity across the country, this use of social media makes sense, especially given the challenges to community policing created by language barriers.

In another use of social media, I read an article about the chief of the Dallas police department using his Twitter account to shame demoted and fired officers. In 140 characters or less, the chief identifies the officer by name and explains the basis for his employment decision. The chief believes the tweets promote transparency with the public. Not surprisingly, the police union has criticized this practice. Has the chief gone too far? I suspect the verdict will ultimately be rendered in the court of public opinion.

I-9 & E-Verify: 7 Smart Tips To Improve Your Compliance Efforts

Posted on: January 10th, 2014

By: Kelly Eisenlohr-Moul

Concerned about I-9 audits or E-Verify compliance?  Consider implementing these smart tips:

(1)    Don’t allow employees to begin work until the I-9 form is complete.  This reduces the risk of late completion or incomplete forms.  It’s also easier to ask the employee to come back the next day with proper documents than to follow up with them within the 3-day window. 

(2)    Train your staff.  The easiest way to train your staff regarding the I-9 and E-Verify processes is via free, online webinars sponsored by US Customs and Immigration Services.  

(3)    Keep Forms I-9 in a separate file (don’t lump them in with the rest of your personnel documents). 

(4)    Conduct an annual self-audit to monitor your own compliance.  See this blog post for a description of the process. 

(5)    Don’t seek advice from ICE/DHS or any other administrative agency.  Asking for assistance or guidance from an administrative agency is likely to land you on the short list for an audit, especially if your inquiry relates to a novel or hot-button issue.   

(6)    Beware of document abuse complaints.  Don’t ask employees for specific documents or more documents than you need to complete Section 2 of the Form I-9. 

(7)    Review each Form I-9 before an employee leaves your payroll.  This may be your last chance to collect missing information or correct inadvertent errors.

“Good Faith” Defense to TCPA Liability

Posted on: January 7th, 2014

By: Matt Foree

A California federal court has recently held that a debt collector is not liable under the Telephone Consumer Protection Act (“TCPA”) based on the collector’s “good faith” belief that Plaintiff provided prior express consent to the calls.  (See Chyba v. First Financial Asset Management, Inc., A.K.A. FFAM, Case No. 12-cv-1721-BEN (S.D. Cal. Nov. 20, 2013)).

In Chyba, Plaintiff alleged liability under the TCPA after Defendant FFAM made four telephone calls to Plaintiff’s cellular telephone.  The statute exempts from liability those callers making calls with the recipient’s consent.  FFAM asserted that it was acting to collect a debt for a creditor, Enterprise Rent-A-Car, whose account showed that Plaintiff owed money to Enterprise based on damage to a rental car.  Enterprise’s records also included Plaintiff’s telephone number that FFAM called listed as the “home” number on the rental car agreement, with a different number listed as her cellular number.  Defendant claims it had Plaintiff’s consent because she gave her number to Enterprise.  Plaintiff disputed that she ever gave consent to Enterprise, denied giving her number to Enterprise, and could not recall whether she rented the car at issue.

Judge Benitez, writing for the U.S. District Court for the Southern District of California, granted Defendant’s motion for summary judgment on the TCPA claim based on FFAM’s good faith defense.  He stated, “[A]lthough Plaintiff did not give consent directly to Defendant to call her cell phone number, it is sufficient that Defendant had a good-faith basis to believe that Plaintiff had provided consent to the creditor on whose behalf Defendant sought to collect a debt.”  Judge Benitez further held, “Even if Plaintiff is correct in stating that she never gave Defendant or Enterprise consent to call, and there was no actual prior consent from Plaintiff, Defendant is not liable for acting in good faith upon the information provided to it.”

Only time will tell as to the effect of Chyba, including whether courts will apply a good faith defense outside of the debt-collection context.  In the meantime, TCPA defendants will appreciate the possibility of an additional defense to the limited defenses available to the TCPA’s costly liability.

Conducting an Annual Self-Audit of Forms I-9

Posted on: January 7th, 2014

By: Kelly Eisenlohr-Moul

I-9 and E-Verify compliance is a lot like exercising and eating spinach.  Everyone knows that it’s good for you, but most are not motivated to invest the time and effort.  In the Form I-9 and E-Verify context, the problem with compliance is that your efforts today may not yield any tangible results.  To my knowledge, no one celebrates “not getting audited.”

On the contrary, clients rarely call my office until they are in trouble: an Immigrations and Customs Enforcement (ICE) or E-Verify audit or an investigation by the Department of Justice’s Office of Special Counsel (OSC) into allegedly discriminatory hiring practices.

Although I regularly am asked to represent an organization after ICE or the OSC knocks on the doors for an immigration audit, I would prefer to help you before ICE or the OSC darken your company’s doorstep.  It costs less money, takes less time, and is much less stressful.

My goal for this blog in early 2014 is to assist you in implementing some simple procedures in order to reduce your risk of being audited and fined for I-9 or E-Verify compliance issues.

The first of these measures is an annual self-audit of all Forms I-9.   

If you are keeping Forms I-9 in a separate binder or file (as you should be), then conducting this audit is fairly straightforward:

  • Check your payroll to make sure you have a Form I-9 for each current employee;
  • Purge Forms I-9 from employees hired more than three years ago and terminated more than one year ago; and
  • Use a checklist to ensure that the Forms I-9 do not contain any errors or omissions.

If you locate errors or omissions, simply correct the missing or inaccurate information using red ink, along with an notation similar to “self-audit on 1/3/14” along with the initials of the employee making the change.

Conducting an annual I-9 audit is an excellent opportunity to correct errors which could cost your company thousands of dollars in an administrative or other legal proceeding.

If you would like a sample checklist to assist in conducting a self-audit of Forms I-9, please e-mail me at [email protected].