Workers Compensation Claims Control

Many California employers know by now that a California appeals court recently issued an important decision in Brinker Restaurant Corp. v. Superior Court, interpreting the state's meal and rest period requirements and giving employers and employees welcome flexibility in scheduling breaks. But before you change your break policies and practices to take advantage of Brinker, note that on October 20th, the California Supreme Court has accepted an appeal on the case. A decision will take at least nine months. We strongly recommend that employers stick with a strict meal and rest period policy that requires employees to take meal and rest breaks and to take breaks by specified times.

Update on “No Match” Letters About Potentially Undocumented Workers In August 2007, the long awaited "no-match letter" regulation from US Immigration and Customs Enforcement was released. The rule describes what employers must do when they receive a no match letter from the Social Security Administration (SSA) or a verification request form from the Department of Homeland Security (DHS). The rule also provides "safe harbors" for employers. If followed properly, these rules will help employers avoid being found to have "constructive knowledge" that the employee referred to in the letter was an alien not authorized to work in the U.S. Employers with knowledge that an immigrant worker is unauthorized to accept employment are liable for both civil and criminal penalties.

The rule finalized a proposed rule released on June 14, 2006. The Department of Homeland Security, ICE’s parent department, received nearly 5,000 comments on the rule from a variety of interested parties including employers, unions, lawyers and advocacy groups. According to DHS, the opinions were highly varied with both strong opposition and support being enunciated. DHS also held a meeting with business and trade associations to discuss the proposed rule.

On October 20th, a federal "no-match" employment rule handed down last year, but later blocked by a federal court, was re-issued by the Department of Homeland Security. Within the next few days DHS will return to the District Court to request that the injunction be lifted so that implementation of the rule can proceed.

The rule, intended to reduce the number of people working illegally in the U.S., requires employers to reconcile discrepancies between employee records and data from the Social Security Administration. If an employer receives a letter from the SSA indicating the employee data doesn't match, it has 90 days to correct the discrepancy or terminate the employee. Failure to do so can be punishable by fines, and in some cases jail time.

The rule states that employers that follow the procedures under the rule after receiving a "no-match" letter will be given a "safe harbor" from liability under the Immigration and Nationality Act. The revised rule also notes that the SSA has developed a series of computerized error-checking procedures to resolve errors in its no-match data. There has been considerable confusion and debate over the employer’s obligations after receiving a letter like this as well as whether an employer would be considered to be on notice that an employee is not unauthorized to work. This rule clarifies both issues, although it will be very unfriendly to employers and workers.

First, an employer must check its records to determine if the error was a result of a typographical, transcription or similar clerical error. If there is an error, the employer should correct the error and inform the appropriate agency – DHS or SSA depending on which agency sent the no-match letter. The employer should then verify with that agency that the new number is correct and internally document the manner, date and time of the verification. ICE is indicating in the preamble to the regulation that 30 days is an appropriate amount of time for an employer to take these steps.

If these actions do not resolve the discrepancy, the employer should request an employee confirm the employer’s records are correct. If they are not correct, the employer needs to take corrective actions. That would include informing the relevant agency and verifying the corrected records with the agency. If the records are correct according to the employee, the reasonable employer should ask the employee to follow up with the relevant agency (such as by visiting an SSA office and bringing original or certified copies of required identity documents). Just as noted above, thirty days is a reasonable period of time for an employer to take this step.

The rules provide that a discrepancy is only resolved when the employer has received verification from SSA or DHS that the employee’s name matches the record.

When 90 days have passed without resolution of the discrepancy, an employer must undertake a procedure to verify the employee's identity and work authorization. If the procedure is completed properly, the employer will NOT be deemed to have constructive knowledge that the employee is not authorized to work. This even if the system later verifies that the employee is not legal. This assumes that an employer does not otherwise have actual or constructive knowledge that the employee is not "legal" and therefore not authorized to work. If the discrepancy is not resolved and the employee's identity and work authorization are not verified, the employer must either terminate the employee or face the risk that DHS will find that the employer had constructive knowledge of that employee's lack of authorization to work.

Sleep, Psyche and Sex: Now Hitting California WC Cases In our September newsletter, we reported that two Court of Appeals expanded the sweep of "major life activities" for disability discrimination claims. First, sleep qualified. Then it was sex. Sending both cases back to trial, the appeals court held that, because the ability to sleep and engage in sexual activity are "major life functions," and because the plaintiffs presented sufficient evidence for a reasonable jury to conclude they were, in fact, limited in these abilities, it was improper for the lower court to grant summary judgment against the plaintiffs. The Centers for Disease Control and Prevention estimates that 10 percent of American adults suffer from a sleep disorder, and at least twice as many suffer from sexual dysfunction, whether physical or psychological. This could mean a lot more lawsuits go to a jury trial.

Now, sleep, psyche and sex are emerging as a new tactic employed by Southern California applicants' attorneys to obtain bigger permanent disability awards. Applicants' attorneys argue that psychiatric injuries, sleeping troubles and sexual dysfunction are real consequences of their clients' work-related injuries. The best way to rebut these claims is to find a credible agreed medical evaluator. The American Medical Association Guides require a bona fide sleep study. A doctor cannot offer a subjective opinion that a claimant is having trouble sleeping.

Don’t be E-nailed by Careless E-mail . . . E-mail is even more dangerous now that a New York appellate court has ruled that an e-mail exchange between two parties was sufficient to modify an employment contract. After replying to an e-mail saying he was "psyched" about the new responsibilities he was taking on, an employee sued to enforce the original terms of his employment contract. But the court held that a series of e-mails could amend the agreement, even though the contract required changes to be in the form of signed writings. For existing contracts, the only option is to use caution. Be very careful about the inadvertent exchange of e-mails that could constitute an amendment," In the cold light of the courtroom there is no such thing as a 'casual' e-mail.