Monthly Archives: March 2013

March 20, 2013

Authors

Dean Bennett
Associate
Boise
208-383-3993
adbennett@hollandhart.com
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Mr. Bennett represents public and private companies in both state and federal court to resolve complex contract and business disputes.
For more information about Dean Bennett, please visit his website bio.
Brad Cave
Partner
Cheyenne
307-778-4210
bcave@hollandhart.com
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Mr. Cave represents businesses, non-profit organizations, and public employers in litigation matters involving discrimination, harassment, retaliation, medical leave, wage and hour disputes, defamation, wrongful discharge, breach of contract, civil rights claims, and employment-related torts.
For more information about Brad Cave, please visit his website bio.
Steve Gutierrez
Partner
Denver Tech Center
303-295-8531
sgutierrez@hollandhart.com
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Mr. Gutierrez is the former Chair of the Labor and Employment Group at Holland & Hart LLP and resident in the firm’s Denver and Denver Tech Center offices. For more information about Steve Gutierrez, please visit his website bio.
Anthony Hall
Partner
Reno
775-327-3000
ahall@hollandhart.com
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Anthony Hall practices primarily in the areas of labor and employment law. He provides litigation defense and extensive preventative counseling to clients in all areas of labor and employment law.
For more information about Mr. Hall, please visit his website bio.
Pamela Howland
Partner
Boise
208-342-5000
phowland@hollandhart.com
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Ms. Howland has experience with a wide range of civil litigation matters including contract, finance, and employment disputes, as well as cases involving tort law.
For more information about Pam Howland, please visit her website bio.
Dora Lane
Partner
Reno
775-327-3045
dlane@hollandhart.com
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Dora Lane practices primarily in the field of employment and labor law. Her experience includes counseling clients on wage and hour, retaliation, and other employment related issues.
For more information about Dora Lane, please visit her website bio.
Scott Randolph
Partner
Boise
208-383-3988
serandolph@hollandhart.com
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Mr. Randolph’s practice involves virtually all aspects of commercial litigation, with an emphasis on complex commercial and employment litigation.
For more information about Scott Randolph, please visit his website bio.
Nicole Snyder
Partner
Boise
208-342-5000
ncsnyder@hollandhart.com
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Ms. Snyder’s practice focuses on virtually all aspects of transactional and employment law. Her transactional experience extends to general business planning, mergers and acquisitions, debt and equity transactions, and real estate transactions.
For more information about Nicole Snyder, please visit her website bio.
Mark Wiletsky
Of Counsel
Boulder
303-473-2864
mbwiletsky@hollandhart.com
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Mark Wiletsky provides quick, practical solutions to difficult employment-related problems.
For more information about Mr. Wiletsky, please visit his website bio.
Susan Woods
Marketing and Policy Attorney
Denver
303-295-8103
sbwoods@hollandhart.com
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With years of experience representing employers, Ms. Woods assists clients with a variety of labor and employment matters. She helps clients create and review employee handbooks and develop policies.
For more information about Susan Woods, please visit her website bio.

March 19, 2013

Checklist for Complying with the New FMLA Regulations

FMLA_posterHave you updated your Family and Medical Leave Act (FMLA) policy and poster?  You should have.  New regulations that implement changes to the FMLA went into effect on March 8, 2013.  Covered employers need to take action now to ensure compliance with the new rules. 

A summary of the changes to the FMLA as well as a checklist for complying with the new regulations is available here.  Be sure to update your FMLA policies, poster, certification forms and notice of rights immediately.  In addition, ensure that your leave administrators, supervisors and human resources personnel are trained on the new rules.  FMLA compliance isn't hard, but it does take work!

March 8, 2013

Revised I-9 Forms Ready for Immediate Use

By Roger Tsai

I_9_formFollowing months of revisions and public comment, the U.S. Citizenship and Immigration Services (USCIS) released a new and revised version of Form I-9 for immediate use.  Employers are directed to use the new Form I-9 beginning March 8, 2013.  However, realizing that some employers may need additional time to incorporate the new forms into their hiring process, USCIS is allowing a 60-day grace period.  The deadline for making the switch to the revised Form I-9s is May 7, 2013.

What’s Changed in the New Form I-9?

As you likely know, employers are required to verify every new employee’s identity and establish the employee’s employment eligibility in the United States through completion of the Form I-9.  The revised Form I-9 is now two pages instead of one, not counting the instructions and the list of acceptable documents.  The layout has been revised and the instructions improved.  It includes additional data fields to collect employee’s telephone number, email address and foreign passport information (if applicable).  For workers under temporary work authorization status such as those on a H-2B, H-1B, L-1, or TN visa, the revised form specifically requests a foreign passport number and the country of issuance.  The USCIS reminds employers that the I-94 must be unexpired and the proposed temporary employment must not conflict with any restrictions on the I-94.  The revised form also explicitly advises employers not to accept restricted Social Security cards. 

Do I Need to Change My Form I-9 Process?

No, your procedure for obtaining and completing Form I-9s has not changed.  Section 1 of the Form I-9 must be completed by the employee no later than the first day of work.  The employer must complete Section 2 of the form within three business days after the employee begins work.  Section 3 must be completed if the employee’s work authorization expires.

Employers do not need to complete a new Form I-9 for current employees who completed a form when they were hired.  When re-verification is needed, however, employers should use the new and revised Form I-9.

Where Do I Obtain the New Form I-9?

You may get the new form through the USCIS website’s I-9 Central page.  You may also call the USCIS National Customer Service Center at 1-800-375-5283.  A Spanish-language version of the new Form I-9 is available online for use in Puerto Rico only.  

March 4, 2013

Pay Discrimination Standards Ditched to Broaden OFCCP’s Title VII Discrimination Analysis

By

On February 26, 2013, the Office of Federal Contract Compliance Programs (OFCCP) announced changes to its enforcement standards and investigation procedures regarding compensation discrimination by federal contractors and subcontractors.  Charged with enforcing Executive Order 11246 which requires nondiscrimination as well as affirmative action, the OFCCP rescinded two 2006 pay discrimination enforcement guidance documents.  Concurrently, it issued a written compensation directive to improve compensation investigation procedures and protocols.  Directive 307, entitled Procedures for Reviewing Contractor Compensation Systems and Practices, will apply to all OFCCP reviews scheduled on or after February 28, 2013.  The intended effect of the rescission and Directive 307 is to broaden OFCCP’s compensation enforcement tools to all those available under Title VII of the Civil Rights Act of 1964. 

In large part, the rescission and Directive 307 simply capture the sort of compensation analyses OFCCP has already been conducting for the last couple years.  Nonetheless, Directive 307 will require even greater attention to and analyses of compensation practices and results.   

2006 Compensation Guidance Rescinded as Too Constraining on OFCCP Investigators 

The OFCCP rescinded two 2006 guidance documents:  (1) Interpreting Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Compensation Discrimination, which provided the procedures used by the OFCCP when issuing a notice of violation for pay discrimination; and (2) Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Nondiscrimination Requirements of Executive Order 11246,  which provided contractors with a set of directions to show their compliance with fair pay practices.  The OFCCP states that it decided to rescind these documents because they significantly constrained its ability to fully investigate pay discrimination and were not consistent with other federal laws that address systemic discrimination.  The OFCCP also found that contractors rarely used the voluntary guidelines to demonstrate compliance. 

Title VII Discrimination Standards Will Apply 

In place of the standards articulated in the two rescinded guidance documents, the OFCCP now will use the same breadth of standards that courts use to evaluate pay discrimination claims under Title VII.  The OFCCP points out that these standards already apply to federal contractors in all other contexts and using them for pay discrimination enforcement will avoid subjecting contractors to different rules.   

New Investigation Procedures 

Directive 307 establishes procedures for the OFCCP to review compensation systems and practices.  It addresses data received at the beginning of a desk audit pursuant to a Scheduling Letter as well as at subsequent stages of a compliance evaluation.  These procedures will also apply to the investigation of complaints alleging compensation discrimination.  They do not, however, change any existing recordkeeping or reporting requirements that already apply to federal contractors. 

Additional information regarding the rescission of the 2006 guidance documents as well as Directive 307 may be found in “Frequently Asked Questions:  OFCCP Procedures for Reviewing Contractor Compensation Systems and Practices.”    


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