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Nov 23, 2016

The New I-9 is Now Available!


Category: Employment

The newest version of the Form I-9 is now available as announced by the U.S. Citizenship and Immigration Services. Employers may continue using the current version of Form I-9 until Jan. 21, 2017. After Jan. 21, 2017, all previous versions of the Form I-9 will be invalid. Go here for the new form: https://www.uscis.gov/i-9


 

Failure to Accommodate May Support Claim of Illegal Termination

 

In the area of disability discrimination, several courts have noted that a failure to accommodate or to engage in the interactive process may support an argument in a legal claim that the employee was essentially fired due that failure to accommodate or discuss accommodation.Smith v. Henderson, 376 F.3d 529, 537-38 (6th Cir. 2004). See, e.g., Rabuffo v. VCA Smoketown Animal Hosp., 2016 WL 3165606, at *6 (E.D. Pa. Jun. 6, 2016) (defendant refused to accommodate plaintiff's disability after a surgery despite "repeated requests" was sufficient to state a claim for constructive discharge); McIntyre v. Archuleta, 2015 WL 4566730, at *13 (W.D. Pa. Jul. 29, 2015) (defendant's refusal "to consider accommodating McIntyre, or to engage in the interactive process with her in order to determine whether a reasonable accommodation was possible," along with evidence of disciplinary retaliation, created a genuine issue of fact as to constructive discharge); Pagonakis v. Express LLC, 315 Fed. Appx. 425, 430 n. 4 (3d Cir. 2009) ("To the extent Pagonakis asserts that Express' failure to accommodate... resulted in her constructive discharge, she may present that theory to a jury.").

The take-away? If an employee is asking for some change to their job set up or tasks due to a medical condition or physical limitation, sit down and talk to them about what might work well for both employer and employee and document that you had that conversation. If the request is one you are inclined to deny because it is unreasonable, try to have documentation showing it is not reasonable and that you suggested other alternatives that would make more sense. In this time of a shortage of talent, this effort also helps reduce the cost of turnover and retain employees who you have already spent time and money on training and coaching.


 

Be Careful When Prohibiting Union Activities in Particular Areas

A recent ruling from a court discussing the National Labor Relations Act - which applies to non-union employers as well as those with unions - discussed the guidelines on prohibitions against union activity in areas of the place of employment. Generally, solicitation can be prohibited in work areas. The difficulty arises when areas are used for both work and non-work. There are two types of mixed-use areas: 1) permanent mixed-use areas, in which an area is perpetually used for both work and nonwork activities, and 2) converted mixed-use areas, in which employers temporarily convert work areas into areas for nonwork activities. Employers must allow solicitation and distribution at all times in permanent mixed-use areas. Employers may prohibit solicitation and distribution in converted mixed-use areas when they are being used as work areas. The case was: Mercedes-Benz U.S. Int'l Inc. v. Auto Workers, 11th Cir., No. 15-10291 (Oct. 3, 2016). Looking for more information? Go here: https://www.nlrb.gov/

Off Limit Interview Questions

A great guide to what employers CAN and cannot ask is right on the Maine Human Rights Commission website:http://www.state.me.us/mhrc/guidance/pre-employment_inquiry_guide.htm But here is some for guidance for you on what you should NOT ask:

  • Are you married? Do you want to start a family? What would you do if your husband was transferred?
  • Do you have any physical or mental impairments or medical conditions? Have you ever applied for workers' comp benefits? Are you taking any prescription drugs? Have you ever been treated for drug or alcohol addiction? Have you ever been treated by a psychiatrist?
  • What church do you go to? Are there any religious holidays you can't work on?

Try behavioral interview questions such as:

 

  1. Describe a time when you struggled to build a relationship with someone important. How did you eventually overcome that?
  2. We all make mistakes we wish we could take back. Tell me about a time you wish you'd handled a situation differently with a colleague.
  3. Tell me about a time you needed to get information from someone who wasn't very responsive. What did you do?
  4. Tell me about a time you had to be very strategic in order to meet all your top priorities.
  5. Describe a long-term project that you managed. How did you keep everything moving along in a timely manner?
  6. Tell me about a time when you worked under close supervision or extremely loose supervision. How did you handle that?
  7. Give me an example of a time you were able to be creative with your work. What was exciting or difficult about it?
  8. Tell me about a time you were dissatisfied in your work. What could have been done to make it better?

Would you like a longer list of examples? Just email Rebecca Webber and it will be sent right to your in-box.


This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Bryan Dench, Amy Dieterich, Jordan Payne, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters.  You can contact us at 207.784.3200.  Skelton Taintor & Abbott is a full service law firm providing legal services to individuals , companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.