Internal Corporate Investigations and Forum for In-House Counsel – April 24-26, 2013

The National Law Review is pleased to bring you information regarding the upcoming Internal Corporate Investigations and Forum for In-House Counsel by the ABA:

Internal Corporate Investigations April 24-26 2013

April 24 – 26, 2013

Where

  • St. Regis
  • 923 16th St NW
  • Washington, DC 20006-1701
  • United States of America

This intensive National Institute remains incomparable in its examination of the demanding issues that define corporate internal investigations.   Our distinguished faculty is comprised of in-house & outside counsel, and government lawyers along with nationally-acclaimed forensic accountants and investigators.  These professionals, top in their field from years of corporate practice, will share key strategies for avoiding the pitfalls often faced by in-house counsel on a daily basis and particularly during corporate investigations.

Attendees of this advanced national curriculum will:

  • Learn strategies to avoid new challenges facing in-house counsel
  • Gain practical knowledge about the Responsible Corporate Officers Doctrine
  • Increase their proficiency in current compliance and fraud investigation procedures
  • Walk away with information that will address unique challenges and needs during daily practice

From Silver Bullets to Bazookas: Workers’ Innovative Challenge to Wal-Mart’s Employment Practices

The National Law Review recently announced a winner in our Law Student Legal Writing Contest.  We are pleased to publish the winning article regarding Wal-Mart’s Employment Practices by Courtney Anne Chicvak with St. John’s University School of Law:

“We know nothing of what will happen in future, but by the analogy of experience.” – Abraham Lincoln

I. INTRODUCTION

Wal-Mart is pioneer of the “Big-Box” store business model, which now dominates the American arena of the corporate retail industry. Built upon the bedrock principle of offering “every day low prices,” the retail giant strives to offer the highest quality product for a lower price then competitors, and to do so, reduces input costs by relying upon frugal and efficient business practices. Wal-Mart has minimized labor input costs in their in-store operations by strategically opening stores in rural areas and saturating markets, utilizing distribution networks, relying upon in-store technology and providing minimal in-store customer service. Because of these reduced labor costs, Wal-Mart is able to pass these savings on and can offer lower prices than other retailers. As a result, corporate competitors are forced to adopt a similar business model, while small-town stores are pushed out of business. As competitors begin to adopt the Big-Box business model of replacing labor with capital, thus reducing labor costs, and simultaneously small town stores cannot keep up and close, the result has been a decrease in job opportunities for workers in the surrounding area. In effect, fewer employment opportunities for workers has allowed Wal-Mart, and other similar big box retailers, to retain a greater control over working conditions, including, but not limited to the size of the workforce, wages, and working conditions.

The big-box business model, paired with external economic factors such as high unemployment rates and fewer job opportunities to select from, has left some in-store retail workers dissatisfied with working conditions. Foreseeing the possibility of a dissatisfied workforce, Wal-Mart has animatedly implemented aggressive union avoidance strategies to prevent the organization of in-store workforces. The size and economic power of Wal-Mart has resulted in a massive disparity in bargaining power. As a result, workers have consistently failed in making changes to in-store working conditions.

On November 22 and 23, in-store workers orchestrated and executed a nationwide protest against the working conditions at Wal-Mart stores.[i] Relying upon the internet and a blend of traditional organizing methods, Wal-Mart employees, supported by Alternative Worker Organizations and coalition groups, protested work conditions at 26 Wal-Mart stores in 12 states on Black Thursday and Friday, the biggest day of the year for the nation’s retailers. Distinguishable from the silver bullet strategy relied upon in past protests, where workers organized on a small scale and efficiently targeting individual employment practices, the Black Friday attack on Wal-Mart labor relations relied upon a bazooka strategy, by increasing the scale and scope of the protest. Because both prevalent and relevant nationwide, the protests received enormous attention from the media.

As a result of these recent events, both Wal-Mart and OUR Walmart, a worker’s organization involved in coordinating the employee protests, filed Unfair Labor Practice charges with the National Labor Relations Board. In response to these charges, on January 30, 2013, the NLRB issued an Advice Memorandum offering a temporary resolution to the dispute and a News Release summarizing a settlement reached between OUR Walmart and Wal-Mart.[ii] Although firing allegations of ULP’s at each other may provide short-term relief, it is unlikely that the resolution of these allegations will result in peace between labor and management in big-box retailers such as Wal-Mart. Underlying these claims are the conflicting cultural views of consumerism and solidarity, as well as the policy issues of the increasing disparity of income and the disappearance of the middle class. Vaguely reminiscent of the Pre-New Deal conflict in labor relations, as seen during the 1920’s, the recent events in the retail industry could potentially lead to a public reemergence of the labor union, thus reviving the labor movement and modernize organizing strategies in the 21st century.

II. WAL-MART AND THE BIG-BOX BUSINESS STRATEGY

Wal-Mart is more than the world’s largest retailer: In recent years it has morphed into an economic powerhouse and cultural phenomenon. Wal-Mart is the largest corporation in the world, employs over 1.4 million workers in the United States in 4,602 stores throughout the United States, and had a total revenue of $464 billion in 2012 fiscal year.[iii] Not only has Wal-Mart dominated in the retail arena, it is also the nation’s largest grocer. Super Wal-Mart consumes 19 percent of the grocery sector market-share. Today, Wal-Mart employees represent one percent of total employment and ten percent of retail employment.[iv]

Since the first Wal-Mart opened in Bentonville, AR in 1968, the store has expanded rapidly throughout the United States.[v] While this expansion may appear to bring jobs to these areas, local communities have opposed the opening of Wal-Mart for a variety of reasons. Citizens in these areas argue that Wal-Mart should stay out of their communities to prevent urban sprawl, preserve historical culture, protect the environment and avoid road congestion. But two of the main arguments these locals use are that Wal-Mart does not create as many retail jobs as it eliminates, and consequently, it results in lower wages for workers in their community, particularly in the grocery sector. Wal-Mart executives have denied these claims by reassuring communities that store openings can create more jobs in communities, not just at Wal-Mart, because their low prices will draw more shoppers to the area.[vi] Another argument that Wal-Mart advocates assert is that the store provides the lowest prices possible for consumers, allowing people in the community to save money on their shopping.

A.Wal-Mart Corporate Culture and Philosophy: Everyday Low Prices

Wal-Mart, a new “invention” in the retail sector, is rooted in the philosophy of providing the lowest priced items of the same quality as competitors are offering to shoppers. The origin of this philosophy can be traced back to founder Sam Walton, a man who believed in offering value to customers. By fixating on the numerical aspect of the business, Walton was able to offer products for lower costs then competitors, no matter how slight the cost may be. As to labor, Walton believed workers wages to be an additional operating expense, which increased the cost of production and subsequently the cost of labor would be passed onto the customer.[vii]

Emerging from the philosophy of Walton, the Wal-Mart corporate culture continues to concentrate on offering a value product for customers. This core principle is manifested in the Wal-Mart company motto of offering “Everyday Prices. Everyday” for customers. Deeply embedded in company practices, this philosophy still appears to control most of Wal-Mart’s business decisions.

B. Wal-Mart’s Saturation of Rural Areas

When Walmart stores first opened, one of the primary factors to be considered was the location of the store in relation to the first store in Bentonville, Arkansas. Walton used a saturation method of store openings, where the company used a “spreading out, filling in” strategy. The reasoning behind this method was to connect stores with access to both warehouses, to stock the shelves, and management, to ensure the store was managed properly. Five years after the first opening in 1968, Wal-Mart had 18 additional stores in surrounding states and totaled revenue of $9 million. Wal-Mart continued this opening pattern and “saturated” surrounding areas, depending on the control of store openings and word-of-mouth advertising. Studies have shown that Wal-Mart tends to enter small towns where population growth is expected and projected retail growth was high. Sam Walton described the control and distribution motive as follows:

“[Our growth strategy] was to saturate a market area by spreading out, then filling in.  In the early growth years of discounting, a lot of national companies with distribution systems already in place—Kmart, for example—were growing by sticking stores all over the country.  Obviously, we couldn’t support anything like that. … We figured we had to build our stores so that our distribution centers, or warehouses, could take care of them, but also so those stores could be controlled.  We wanted them within reach of our district managers, and of ourselves here in Bentonville, so we could get out there and look after them.  Each store had to be within a day’s drive of a distribution center.  So we would go as far as we could from a warehouse and put in a store.  Then we would fill in the map of that territory, state-by-state, county seat by county seat, until we had saturated that market area.  … So for the most part, we just started repeating what worked, stamping out stores cookie-cutter style” [viii]

C. Wal-Mart’s Supplier Relations

In order to successfully provide high-quality yet low-priced products to customers, Wal-Mart relies on cutting deals with large suppliers by guaranteeing massive orders for lower prices. Surrounding Bentonville, AR, the area “Vendorville” developed containing hundreds of satellite offices of huge suppliers because these companies wanted to develop a relationship with Wal-Mart.[ix] An example of this is Wal-Mart’s relationship with the company Rubbermaid, who is known for high quality plastic goods. In the 1980’s, Rubbermaid’s CEO recognized the potential success for the company and began selling them huge quantities for lower prices than they would usually offer. After a few years though, Rubbermaid began demanding higher prices for their products, but Wal-Mart refused. Wal-Mart realized the power they held over the suppliers because they were able to provide so much business for the companies, and could essentially charge these companies any price, despite how low, and they would have to pay.[x] By buying their products in bulk for much lower costs, Wal-Mart can slash prices lower than their competitors.

Not only has Wal-Mart made deals with suppliers in the United States, they have also began to depend on international suppliers to keep their prices the lowest on the market. By seeking out retailer’s over-seas, they can make deals with companies located in places with lower labor costs and again buy their products from the supplier for lower costs than any other business.[xi]

C. The Consumer Appeal of Wal-Mart

For consumers, shopping at Wal-Mart is appealing for a variety of reasons.[xii] First, these single stores house thousands of products ranging from clothing to produce under one roof. The diverse range of products makes shopping convenient for consumers, because they do not have to go to multiple stores for different products. Second, Super Wal-Mart’s advertisements are based around the idea of “roll-backs,” which are discounted prices. This makes shoppers feel thrifty because they are buying items for the lowest price on the market. Third, the multitude of stores and standardized design breeds familiarity for consumers. If a shopper lives in Williamsport, PA but goes on vacation to Santa Fe, NM, the Super Wal-Mart they go to at home will closely resemble the store they visit thousands of miles away. Each store has a similar layout and sells almost the exact products, which draws shoppers because it is something they normally encounter. Finally, the creators have turned shopping at Super Wal-Mart into an “experience,” where everything from the plastic bags to the oversized neon sign outside makes people easily recognize the store.

D. Pressure on Competitors

The combination of these unique traits has built the Super Wal-Mart brand, and it has created a cult-like following among customers. However, the increase in Wal-Mart sales poses a threat to the competition. Although a smaller family-owned store can offer more personalized and custom-tailored services, most people do not require this. When a shopper is posed with the choice of paying lower prices to go to a large and familiar place or to go to a small local business and pay more money for the same product but get unique service, majority would choose lower prices. Other large retailers are also under pressure to reduce prices to compete with Wal-Mart. In order to stay in business, nation-wide retailers such as K-Mart and Sears also began to adopt Wal-Mart’s distribution center method.[xiii] [xiv]

E. How Wal-Mart Reduces Labor Costs

This new “invention” has implications for employment rates and the number of stores throughout the United States. Shopping at Wal-Mart means buying in bulk versus buying individual items, and getting consumers more of a given product for a lower price. But by opting to shop at a large store, the consumer must forfeit personal help for lower prices. Wal-Mart expects people to do their own searching while shopping. Although they can buy products in bulk for lower prices, they give up the personalized assistance and service while shopping.[xv]

Wal-Mart was the first retailer to use the barcode system in order to determine when to order or replace items on store shelves. Traditionally, retailers relied upon in-store employees to manually count the number of items on shelves and place orders when the item was almost out of stock. Wal-Mart recognized the value in connecting the barcode number to stocking shelves, and developed a system to alert distribution centers when certain items were running low on shelves.[xvi]

III. WAL-MART’S LABOR RELATIONS POLICY

Wal-Mart has taken advantage of the high unemployment rate and the reduction in the number of job opportunities in rural areas. By maintaining control over a significant portion of the labor market in rural areas, Wal-Mart has retained discretion over in-store working conditions by publically announcing a “pro-associate” culture, yet by deviating from this culture on a case-by-case basis with retaliation and anti-unionization techniques.

A. Pro-Associate Culture

Wal-Mart has created a “pro-associate” culture, in which management uses different techniques to empower workers and create the illusion of solidarity in stores. These techniques include, but are not limited to “coaching” workers when they make mistakes instead of citing or writing them up[xvii], daily cheers and chants to boost employee morale, and the creation of an “open door policy,” which allows anyone to state a problem or concern without fear of retaliation. Consequently, Wal-Mart’s company policy states that because the company has an “open door policy,” there is no need for third-party representation.[xviii] To rebut negative publicity received, Wal-Mart advertises and publically boasts of in-store worker satisfaction. For example, on November 30, 2012, an executive publically claimed that eighty-six percent of Walmart hourly workers said in a survey “they agree with the statement ‘I really love my job.’”[xix]

B. Union Avoidance Techniques

Although Wal-Mart’s “pro-associate” culture has proven useful to control the majority of the workforce, Wal-Mart’s company policies are not always adhered to and not always strictly enforced. In order to prevent the unionization of a store location, management will use a variety of union avoidance techniques, some more militant than others. Examples of these techniques include, but are not limited to the threatening, harassment, and termination of outspoken workers. Workers have attempted to report these acts taken against them by the employer through filing Unfair Labor Practice charges. Yet because of the sporadic nature of these incidents, usually contained to one store location, paired with employee fear of retaliation for doing so, Wal-Mart has not yet changed its labor relation techniques.[xx]

C. The Walmart Store Associate

The current economy has also left some workers hesitant to speak out against Wal-Mart’s employment practices. High unemployment rates have made it more difficult to organize a union because workers are even more fearful of their jobs. Half of the people who lose their jobs qualify for unemployment insurance. Big-box workers rarely qualify for unemployment because they have not been on the job long enough or they are only part-time. This makes the risk of job loss even greater.

The composition of Wal-Mart’s in-store workforce reflects the company’s strategy of opening stores in rural areas. The typical Wal-Mart employee is about 30 years old. The average Wal-Mart worker nationwide earns $8.81 per hour. A third of Wal-Mart’s employee’s work less than 28 hours per week, therefore not qualifying for benefits. The composition of the Wal-Mart workforce is startling. The majority of Wal-Mart’s employees are over thirty years old. Two-third’s of the Wal-Mart in-store workforce are women. Wal-Mart’s in-store jobs cannot be outsourced abroad, nor is it likely to be replaced completely with automated computers or other machinery. These are jobs that are personal and direct, and typically involve helping customers locate items and checkout at the register. [xxi]

IV. FAILURE OF TRADITIONAL METHODS OF ORGANIZING

Thus far, Wal-Mart employees have had little success using traditional methods for improving working conditions and wages. Attempts to organize have consistently failed, and currently, there are no Wal-Mart stores in the United States where workers are represented by a union. Legal challenges, although some successful and others not, have not made a significant impact upon or have significantly changed the working conditions of Wal-Mart employees.[xxii] The traditional methods of unionizing were successful in different industries during a different era. The size of Wal-Mart and the enormity of the corporation’s economic power have proven challenging in union organizing among workers in retail stores.

Prior to Black Friday, each of these challenges had relied on traditional methods of union organizing. First, challenges tend to be isolated and contained to one store at a time. Generally, there has been little coordination between organizing events at Wal-Mart stores. When workers at one store location at a time seek to change the working conditions, it is easy for management to intervene and prevent the store from unionizing. Second, workers’ tended to focus on certain employment practices rather then the generalized proposition of “working conditions.” Third, challenges to employment practices were targeted at one link of the Wal-Mart distribution chain – either in store or warehouse. Fourth, challenges were either legal challenges or through organizing attempts.

V. SIGNIFICANCE OF BLACK FRIDAY

Black Friday’s organizing technique varied significantly. The use of the Internet during the organizing process allowed workers to coordinate protests throughout the country. First, the protests were widely coordinated. Protests took place at about 28 stores throughout 12 cities in the United States. By relying upon social media programs such as Twitter, Facebook and Instagram, as well as e-mail, websites, and blogs, protesters were able to communicate before, during and after Black Friday. Additionally, these Internet platforms were used as a source of support, encouragement and a constant reminder of worker solidarity. While some of the benefits of online organizing include the ability to communicate instantly and anywhere, the disadvantages of online organizing include the public availability information, which is more accessible to management. Online organizing requires forfeiting secrecy, but the size of the movement may be a greater advantage. Third, Wal-Mart employees challenged “working conditions,” including but not limited to, wages, hours, health care insurance, and other benefits. Fourth, Wal-Mart employees relied upon support from multiple Alternative Worker Organizations and coalition groups. Although these Alternative Worker Organizations had received funding from unions in the past, thus union subsidiaries, they continuously state that they are not affiliated with any union organizations. Fifth, those who worked in both the distribution centers and warehouses supported workers protesting in-store conditions.

VI. ALLEGATIONS OF UNFAIR LABOR PRACTICES

A. Prior to Black Friday – Week of November 16, 2012

The NLRB had been caught in crossfire of Unfair Labor Practice charges between Wal-Mart and workforce. Once Wal-Mart learned of workers’ plans to protest wages and working conditions on Black Thursday and Friday, Wal-Mart anticipated the effect such protests may have upon sales. On November 16, 2012, a week before the planned protests, Wal-Mart filed an unfair labor practice charge against the United Food and Commercial Workers International Union (UFCW) with the National Labor Relations Board (NLRB).[xxiii] Wal-Mart alleged that the UFCW violated § 8(b)(7)(C) of the NLRA, which prohibits the picketing of any employer by a labor organization for more than thirty days without filing a petition with the NLRB, where the object of the picketing is to force the employer to bargain with the labor organization. [xxiv]

According to Wal-Mart, the UFCW is responsible for these demonstrations “through its subsidiaries, affiliated organizations, and agents, including that labor organization known as ‘OUR Walmart.’”  Wal-Mart alleges that UFCW, a labor organization under the Act, had provided funding to the alternative workers organizations to allow them to orchestrate and execute the Black Friday protests. In a 2011 filing with the Labor Department, OUR Walmart was listed as a subsidiary of the UFCW, but contends that it no longer receives such support.

Even if it is found that OUR Walmart is a subsidiary of the UFCW, § 8(b)(7)(C) also requires that the object of the demonstration must have been to force Wal-Mart to bargain with the UFCW. Wal-Mart claimed that the protests were for the purpose of organizing in-store workforces, while OUR Walmart argued that the Black Friday protests were planned to pressure management into adopting the terms and conditions in their “Workers Declaration of Rights.”[xxv]

On November 20, 2012, the Tuesday prior to Black Friday, OUR Walmart filed an unfair labor charge with the Board asserting that Wal-Mart was making illegal threats to deter its employees from participating in protests scheduled for Black Friday. Exposed in a leaked memo[xxvi] addressed to salaried Wal-Mart employees, management advocated the use of boilerplate union avoidance tactics to handle any employee unrest on Black Friday.[xxvii] The complaint said that a statement alerting Wal-Mart employees that “there would be consequences” if they did not report for work, made by Wal-Mart Vice President David Tovar on the CBS Evening News constituted an illegal threat meant to discourage workers from exercising their § 7 right to protest working conditions.[xxviii]

B. Post-Black Friday – Week of January 30, 2013

Months after the events that occurred on Black Friday, on January 30, 2013, the NLRB issued an Advice Memorandum[xxix] and published a News Release[xxx] relating to the Black Friday charges. In the memorandum, OUR Walmart states that the group is not an affiliate of a labor organization and agrees not to picket for 60 days. Significantly, OUR Walmart does not denounce the group’s purpose of improving working conditions or its intention of doing so.

VII. CONCLUSION

It is unlikely that the agreement outlined in the NLRB’s Advice Memorandum, even if adhered to, will resolve the on-going conflict between workers and management over the working conditions in Wal-Mart stores. After the Black Friday protests, it is clear that Wal-Mart will be forced to address the complaints made by workers.[xxxi] If Wal-Mart must address these issues, the question then becomes whether management will choose to meet some of the workers’ demands in order to retain some control over their business practices. Slight concessions, such as raising hourly workers from a minimum wage to a living wage standard, may be wise.[xxxii]

Underlying both of these allegations are greater issues of unresolved issues of conflicting public policies and ideologies. First, the recent events of worker protest are a reminder of dramatic and increasing disparity of income among the American population. While workers protested their job conditions and wages, other Americans leisurely attended Black Friday shopping events nationwide, either blind to or ignorant of the protests. Second, by forcing employees to work on Thanksgiving Day, Wal-Mart in effect cancelled Thanksgiving for millions of Americans. Protests of working conditions on Thanksgiving Day symbolically reject modern consumerism. Ironically, Wal-Mart boasted of a greater number of shoppers this year compared to last, as well as over 10 million purchases made. Finally, history is cyclical. Nearly one hundred years ago, although in a different era and form, similar conditions lead to workers challenging work conditions. During the 1930’s, workers challenged big business for wage increases and changes in working conditions. Now, although finding success with alternative methods, workers still seek the similar reforms.


[i]See Walmart Workers Plan Black Friday Protestshttp://www.cbsnews.com/8301-18563_162-57552153/walmart-workers-plan-black-friday-protests/(last visited Mar. 4, 2013).

[ii]See NLRB Charge Alleging Illegal Picketing at Wal-Mart Held in Abeyance,http://www.nlrb.gov/news-outreach/news-releases/nlrb-charge-alleging-illegal-picketing-wal-mart-held-abeyance(last visited Mar. 4, 2013).

[iii]See Walmart vs. Union-Backed OUR Walmarthttp://www.businessweek.com/articles/2012-12-13/walmart-vs-dot-union-backed-our-walmart(last visited Mar. 4, 2013).

[iv]See Walmart Factshttp://corporate.walmart.com/(last visited Mar. 4, 2013).

[v]See Walmart Growth Chart,http://money.cnn.com/magazines/fortune/storysupplement/walmart_spread/index.html(last visited Mar. 4, 2013).

[vi]An example of this can be seen in a letter written by Wal-Mart CEO Lee Scott to the New York Times in 2005 saying, “This year, we plan to create more than 100,000 new jobs in the United States.”

[vii]See generally, B Ortega In Sam We Trust: The Untold Story of Sam Walton.

 By Bob Ortega = page 87 “no matter which way you slice it”

[viii]See Store wars http://www.pbs.org/itvs/storewars/stores3_2.html(last visited Mar. 4, 2013).

[ix]See generally, A Bianco, The Bully of Bentonville.

[x]See generally http://www.pbs.org/wgbh/pages/frontline/shows/walmart/interviews/lehman.html(last visited Mar. 4, 2013).

[xi]See Store wars http://www.pbs.org/itvs/storewars/stores3_2.html(last visited Mar. 4, 2013).

[xii]See generally, C Fishman The Wal-Mart Effect: How the World’s Most Powerful Company Really Works.

[xiii]Id.

[xiv]See N Lichtenstein, Wal-Mart: The Face of Twenty-First-Century Capitalism.

[xv]See generally, N Copeland Walmart and the American Dream.

[xvi]See Generally http://www.pbs.org/wgbh/pages/frontline/shows/walmart/secrets/barcode.html(last visited Mar. 4, 2013).

[xvii]See generally J Dicker, The United States of Wal-Mart.

[xviii]See Store warshttp://www.pbs.org/itvs/storewars/stores3.html(last visited Mar. 4, 2013).

[xix]See Walmart Wants You to Know That Their Workers ‘Love Their Jobs’http://www.huffingtonpost.com/2012/11/30/walmart-workers_n_2218746.html(last visited Mar. 4, 2013).

[xx]See Walmart Employees to Stage Black Friday Protest http://fox6now.com/2012/11/23/wal-mart-employees-to-stage-black-friday-protest/(last visited Mar. 4, 2013).

[xxi]See Organizing McDonalds and Walmart, and Why Austerity Economics Hurts Low-Wage Workers the Most http://robertreich.org/post/36892075499(last visited Mar. 4, 2013).

[xxiii]See Wal-Mart filed unfair labor charge against UFCWhttp://www.reuters.com/article/2012/11/16/walmart-union-idUSL1E8MGBV920121116(last visited Mar. 4, 2013).

[xxiv]See http://static.reuters.com/resources/media/editorial/20121116/Wal-Mart-UFCW-NLRB-charge-document.pdf(last visited Mar. 4, 2013).

[xxv]See Worker Declaration of Rights http://forrespect.org/our-walmart-declaration-for-respect/(last visited Mar. 4, 2013).

[xxvi]See Internal Walmart Memo http://big.assets.huffingtonpost.com/Walmart-2.pdf(last visited Mar. 4, 2013).

[xxvii]See Walmart Strike Memo Reveals Confidential Management Planshttp://www.huffingtonpost.com/2012/10/13/walmart-strike-memo_n_1962039.html(last visited Mar. 4, 2013).

[xxviii]See Walmart Workers Plan Black Friday Protests http://www.cbsnews.com/8301-18563_162-57552153/walmart-workers-plan-black-friday-protests/(last visited Mar. 4, 2013).

[xxix]See https://www.nlrb.gov/case/26-CP-093377(last visited Mar. 4, 2013).

[xxx]See NLRB Charge alleging illegal picketing Wal-Mart held abeyance http://www.nlrb.gov/news-outreach/news-releases/nlrb-charge-alleging-illegal-picketing-wal-mart-held-abeyance(last visited Mar. 4, 2013).

[xxxi]See Labor Union Agrees to Stop Picketing Walmarthttp://www.nytimes.com/2013/02/01/business/labor-union-agrees-to-stop-picketing-walmart.html?_r=0(last visited Mar. 4, 2013).

[xxxii]See Living Wages http://laborcenter.berkeley.edu/retail/bigbox_livingwage_policies11.pdf(last visited Mar. 4, 2013).

© 2011 St. John’s University School of Law

Federal Circuit Courts Find No Causal Connection in Employee Retaliation Claims

The National Law Review recently featured an article, Federal Circuit Courts Find No Causal Connection in Employee Retaliation Claims, written by Katherine G. Cisneros of Schiff Hardin LLP:

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As employers know, retaliation cases are notoriously difficult to defend. However, two recent decisions from federal courts of appeal may help employers prevail in such cases. The Sixth and Seventh Circuit U.S. Courts of Appeals recently affirmed summary judgment in two retaliation cases, both courts holding that the employees’ claims did not establish a causal connection between the protected activity and adverse employment action.

Timing Alone Insufficient Where Multi-Year Gap Between Protected Activity and Adverse Action

In Fuhr v. Hazel Park Sch. Dist., No. 2:08-cv-11652 (6th Cir. Mar. 19, 2013), the Sixth Circuit affirmed summary judgment for Hazel Park School District, finding no causal connection between a coach’s prior lawsuit and her subsequent removal from a coaching position. Fuhr served as the high school girls’ varsity basketball head coach at Hazel Park High. In 1999, Fuhr sued the school district, alleging gender discrimination based on the school district’s failure to hire her as the high school boys’ varsity basketball head coach. At the time, the boys’ and girls’ teams played during different seasons. Fuhr ultimately prevailed and in 2004 became the boys’ basketball coach. Anticipating a federal district court order requiring the basketball seasons be played at the same time, the school district removed Fuhr as the girl’ head coach in 2006 because it would be too difficult to coach two teams in the same season.

Fuhr sued, claiming that her removal as the girls’ coach and other harassing acts were retaliation for prevailing in her previous lawsuit. Fuhr claimed her principal told her that “this is a good old boys network….They are doing this to you to get back at you for winning the lawsuit.” The Sixth Circuit determined that the principal’s statement was too ambiguous to provide direct evidence of unlawful retaliation. The court next found that Fuhr failed to demonstrate a causal connection between her prior lawsuit and removal as the girls’ coach. While a close temporal proximity between events can constitute evidence of a causal connection, here, the “multi-year gap prove[d] fatal” to establishing causality. The court also added that even if Fuhr could prove causation, the school district was able to offer legitimate, non-discriminatory reasons for any alleged harassing actions. Accordingly, the Sixth Circuit affirmed summary judgment for the school district on Fuhr’s retaliation claim based on the lack of any temporal proximity.

Employee’s Disagreement with Employer’s Investigation Does Not Prove Retaliation

In Collins v. American Red Cross, No. 08-cv-50160 (7th Cir. Mar. 8, 2013), the Seventh Circuit affirmed summary judgment in favor of the American Red Cross, finding that the employer’s investigation report, albeit possibly incorrect, is not evidence of unlawful retaliation or discrimination. Collins, an African-American woman, worked for the Red Cross. In 2006, Collins filed a racial discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) based on harassment from her co-workers. Collins received a “right-to-sue” letter, but did not file a suit. In 2007, Collins’s co-workers complained that, among other acts of misconduct, Collins said that the Red Cross was out to get minorities. The human resources officer assigned to investigate found that all of these allegations against Collins were “substantiated,” and Collins was terminated.

Collins sued, claiming that her termination was in retaliation for her filing of the EEOC charge. Collins claimed that the report did not really substantiate the claim that Collins said the Red Cross is out to get minorities, and therefore, the report must have been referring to the EEOC complaint. Although the report was “sloppy, and perhaps it was also mistaken or even unfair,” Title VII only forbids discriminatory or retaliatory terminations. Nothing in the report suggested the Red Cross was concerned with Collins’s EEOC complaint. Collins only provided speculation that the report was incorrect because of the EEOC complaint, and mere speculation is not enough to overcome summary judgment. Accordingly, the Seventh Circuit affirmed summary judgment for the Red Cross on Collins’s retaliation claim because she failed to show a causal link between the filing of her EEOC complaint and her subsequent termination.

The Seventh Circuit also affirmed summary judgment on Collins’s race discrimination claim because Collins failed to prove that the Red Cross’ reason for termination was pretextual, emphasizing that “pretext means a lie.” The only piece of evidence Collins offered was that she denied all the allegations raised by her co-worker’s complaints. Denying the allegations is not enough to survive summary judgment because the “fact that a statement is inaccurate does not meant that it is a deliberate lie.” Evidence that an employer reached the wrong conclusion can suggest discrimination if the conclusion were “incredible on its face.” However, here, the court found that the report’s conclusions were not incredible, and there was nothing in the record to suggest racial animus toward Collins. While the Red Cross’s report may have been wrong, that is not enough for Collins’s claim to survive summary judgment.

Sound Employer Practices Remain Key to Successful Defenses

As is clear from the Seventh Circuit case, employer investigations remain a key component of successful defenses of claims. Employers should utilize human resources or other professionals who are trained in both conducting investigations and writing investigation reports to investigate allegations of harassment, discrimination or retaliation. Also keep in mind that, as the Sixth Circuit case suggests, if a long period of time elapses between the employee’s protected activity and the adverse action, it is likely that additional evidence of retaliatory conduct will be required in order for the employee to prevail. To defeat any such evidence, employers should be sure that the legitimate, non-discriminatory reasons for the actions taken are well-documented.

© 2013 Schiff Hardin LLP

Internal Corporate Investigations and Forum for In-House Counsel – April 24-26, 2013

The National Law Review is pleased to bring you information regarding the upcoming Internal Corporate Investigations and Forum for In-House Counsel by the ABA:

Internal Corporate Investigations April 24-26 2013

April 24 – 26, 2013

Where

  • St. Regis
  • 923 16th St NW
  • Washington, DC 20006-1701
  • United States of America

This intensive National Institute remains incomparable in its examination of the demanding issues that define corporate internal investigations.   Our distinguished faculty is comprised of in-house & outside counsel, and government lawyers along with nationally-acclaimed forensic accountants and investigators.  These professionals, top in their field from years of corporate practice, will share key strategies for avoiding the pitfalls often faced by in-house counsel on a daily basis and particularly during corporate investigations.

Attendees of this advanced national curriculum will:

  • Learn strategies to avoid new challenges facing in-house counsel
  • Gain practical knowledge about the Responsible Corporate Officers Doctrine
  • Increase their proficiency in current compliance and fraud investigation procedures
  • Walk away with information that will address unique challenges and needs during daily practice

Locked Out of LinkedIn: A Federal Court Opens the Door To Employer Liability

Recently an article by Jessica A. Burt of Drinker Biddle & Reath LLP regarding LinkedIn was featured in The National Law Review:

DrinkerBiddle

 

The U.S. District Court for the Eastern District of Pennsylvania determined this week inEagle v. Morgan, et al., that a terminated employee who was locked out of her LinkedIn account by her employer suffered no legal damages despite successfully proving claims for unauthorized use of her name, invasion of privacy by misappropriation of identity, and misappropriation of publicity.  The district court previously dismissed Dr. Eagle’s federal claims under the Computer Fraud and Abuse Act and the Lanham Act, and retained jurisdiction over the remaining state law claims.

Dr. Linda Eagle, a former founder and executive of Edcomm, Inc., a banking education company that provides services to the banking community, created her LinkedIn account using her Edcomm e-mail address.  Edcomm did not require its employees to create LinkedIn accounts, nor did it pay for accounts if employees created them.  At the time of Eagle’s termination, Edcomm had no policy in place informing its employees that LinkedIn accounts were the property of the employer.  Eagle shared her LinkedIn password with several Edcomm employees to update her account and respond to invitations.  Following her termination, Edcomm employees accessed Eagle’s LinkedIn account, changed her password, and updated the account with her successor, Sandi Morgan’s picture and personal information.  However, Edcomm failed to change the homepage’s URL to remove Eagle’s name and likewise failed to remove Eagle’s honors and awards section.  Edcomm had full control of the account for approximately 16 days.  LinkedIn subsequently took over the account, and Eagle regained access approximately one month after Edcomm changed her password.  Eagle filed suit against Edcomm and several employees shortly thereafter alleging illegal use of her LinkedIn account.

With respect to Eagle’s claim for unauthorized use of her name, the Court stated that when Edcomm had control of Eagle’s account, an individual conducting a search on Google or LinkedIn for Dr. Eagle would be directed to a URL for a LinkedIn web page showing Sandi Morgan’s name, profile, and employment with Edcomm.  Specifically, the Court noted that when an individual searched for Eagle, he or she would unknowingly be put in contact with Edcomm despite the fact that Eagle didn’t work there anymore.  The name “Dr. Linda Eagle” had commercial value due to Eagle’s efforts to develop her reputation, and Edcomm therefore received the commercial benefit of using her name to promote the service of its business.

The Court similarly found that Eagle successfully proved her claim against Edcomm for invasion of privacy by misappropriation of identity because Edcomm maintained the LinkedIn homepage under a URL that contained Eagle’s name.  Despite the fact that Edcomm updated the LinkedIn homepage with Sandi Morgan’s profile information, the URL still contained Eagle’s name and the Court held that her name had the benefit of her reputation and commercial value.

Additionally, the Court entered judgment in Eagle’s favor on her claim for misappropriation of publicity because she maintained an exclusive right to control the commercial value of her name and to prevent others from exploiting it without permission.  The Court held that Edcomm deprived Eagle of the commercial benefit of her name when it entered her LinkedIn account, changed her password to prevent her from accessing it, and altered the account to display Sandi Morgan’s information.  The Court noted that Edcomm took these actions instead of creating a new account for Sandi Morgan.

Despite her success on three causes of action, the Court determined that Eagle was not entitled to any compensatory or punitive damages.  The Court was not persuaded that Eagle established with reasonable certainty she had lost any sales, contracts, deals, or clients during the period she could not access her LinkedIn account.  Eagle offered the testimony of Clifford Brody, the co-founder of Edcomm, to provide an analysis of her damages.  His calculation was based on Eagle’s average sales per year divided by the number of contacts she maintained on LinkedIn to arrive at a dollar figure per contact, per year.  The Court referred to this method as “creative guesswork” and highlighted the fact that there is a chance that even with full access to her LinkedIn account, she would not have made any deals or signed any contracts with her LinkedIn contacts.  In denying her claim for punitive damages, the Court stated that Eagle failed to call a single witness to offer evidence regarding Defendants’ state of mind or the circumstances surrounding these events.

The Court entered judgment in favor of Defendant Edcomm, Inc. with respect to Eagle’s claims for identity theft, conversion, tortious interference with her LinkedIn contract, civil conspiracy, and civil aiding and abetting.  Judgment was entered in favor of the individual defendants with respect to all of Eagle’s claims, including the claims mentioned above that she successfully proved against Edcomm.  In October 2012, the District Court dismissed Eagle’s federal claims under the Computer Fraud and Abuse Act and Lanham Act as to all defendants.

This case presents another stepping stone in the continuously changing world of social media law.  While employers do have legitimate  concerns about LinkedIn accounts with information that identifies clients’ key decision makers and a company’s strategic business relationships, preventing former employees from accessing their accounts without their consent exposes employers to damages if a former employee can proffer evidence of a lost or misdirected sale or deal. However, there is nothing in the Eagle v. Morgan opinion that restricts an employer’s ability to have employees remove customer names from their LinkedIn accounts before departing from the company.  In fact, courts have recognized that employers do have protectable rights in this information.  For example, in TEKsystems Inc. v. Hammernick, et al., the plaintiff alleged that its former employee’s use of LinkedIn to connect with former colleagues and clients violated the parties’ noncompete/nonsolicitation agreement. In that case, the Court entered a Consent Order for Permanent Injunction prohibiting the former employee from soliciting or contacting the company’s customers for a period of 12 months.  Also, in Coface Collections North America, Inc. v. Newton, the Third Circuit affirmed the district court’s entry of a preliminary injunction against the company’s former owner who, among other things, used LinkedIn to compete with his former company in violation of a restrictive covenant.   

©2013 Drinker Biddle & Reath LLP

Telecommuting—No Longer the Way of the Future?

McBrayer NEW logo 1-10-13

Marissa Mayer is making news. She may also be single-handedly changing employer policies across the country.    As Yahoo’s new CEO, Mayer already made headlines as the youngest female CEO in a Fortune 500 company. But now she is becoming known for what she does and not just who she is. Mayer recently instituted a ban on telecommuting for all Yahoo employees.  The decision was a massive shock to company employees who routinely worked from remote locations. After all, it seems paradoxical that a tech giant like Yahoo requires employees to be physically present in the office for work when technology permits otherwise.

The internal memorandum from Yahoo’s human resources department which announced the change cited a “spirit of collaboration” that can only be achieved when employees are physically together. In addition, Mayer wants to increase productivity for the struggling company and this, in her opinion, is best done when employees are in the actual workplace.

To many, flexible work schedules, condensed work weeks, and telecommuting is the way of the future. Such workplace flexibility, though, can leave employers and HR departments wondering if their policies reflect the best practices for these conditions. If your business decides to offer a telecommuting policy, there are some issues that must be addressed.

First, who will be eligible? You should define eligibility based on positions, and not individuals. For example, you may think Bob is too unmotivated to work from home, but Rhonda would have no problem with efficiency.  Yet distinguishing between the two could lead to a discrimination claim. A better policy may read, for example, “Non-support staff that have been with the business for at least two years are qualified to telecommute.”

Establish clear hours as to when the telecommuter should be working and reachable. The Fair Labor Standards Act and similar state laws apply to home-based worker, so employers need a system for tracking employee hours, including overtime.

Consider safety. While OSHA does not hold employers responsible for the safety of home offices, workers’ compensation laws do still apply. Employers will need coverage for employees who may never step foot in the office. There should also be reporting and investigation procedures in place, just as there are for workplace injuries. Claims arising from telecommute employees should be carefully scrutinized to determine if the injury is work-related.

One of the biggest concerns with flexible work schedules is how to achieve effective oversight. For that reason, consider what measurements you will use to measure successbefore allowing for telecommuting. Keep communication open. For instance, require telecommuters to send in a daily email detailing projects or assignments they are tackling for the day. Insist on a consistent schedule. Be certain that you are providing the same compensation, benefits, and opportunities for promotion to telecommuters that you give to non-telecommuters.

Lastly, and perhaps most importantly, consider the needs of your business. Mayer decided telecommuting no longer worked for Yahoo. Start-ups or businesses dependent on customer face time may take the same approach. For others, it can be a valuable program. Either way, it is important to address the issues discussed herein in your company policies and procedures. Regardless of the size of your business, do not just assume your employees understand.

© 2013 by McBrayer, McGinnis, Leslie & Kirkland, PLLC

Supreme Court Ruling Reverses Bad 9th Circuit Precedent on Class Action Fairness Act (CAFA)

The National Law Review recently published an article, Supreme Court Ruling Reverses Bad 9th Circuit Precedent on Class Action Fairness Act (CAFA), written by Thomas R. Kaufman with Sheppard, Mullin, Richter & Hampton LLP:

Sheppard Mullin 2012

On March 19, 2013, the U.S. Supreme Court handed down Standard Fire Insurance v. Knowles, a short, narrow, and unanimous opinion addressing removal of class actions to federal court under the Class Action Fairness Act (“CAFA”).  The central holding of the case is that a district court should “ignore” representations by the plaintiff that the amount in controversy is under $5 million and instead consider the actual evidence concerning the number of class members and potential claims.  Although the Court did not expressly address Lowdermilk v. U. S. Bank Nat’l Ass’n, 479 F.3d 994 (9th Cir. 2007)—a 9th Circuit case that held that the defendant must establish with “legal certainty” that the amount in controversy exceeds $5 million when the plaintiff pleads that the amount in controversy is lower—the Supreme Court’s reasoning effectively reverses the Lowdermilk line of cases.

The Relevant Facts in Standard Fire Insurance

As relevant, the defendant removed a class action and made a showing through an analysis of the allegations in the complaint that the amount in controversy slightly exceeded $5 million.   The district court found no fault with the analysis, but noted that the Plaintiff had made a formal stipulation that the amount in controversy was less than $5 million. Invoking the old adage that the plaintiff is “the master of the complaint,” the district court held that it was bound to remand the case based on the Plaintiff’s purportedly binding representation that the class was seeking less than $5 million.

The Supreme Court’s Holding

The limited question the Supreme Court answered was, assuming the evidence otherwise indicated that the class’s potential recovery exceeds the minimum $5 million, did the formal stipulation defeat federal jurisdiction.  The Court answered this question “no.”  The plaintiff, as a mere potential representative for an uncertified class, had no power to bind the class and to require them to agree to the reduced recovery.  This is to be contrasted from where an individual stipulates that his damages are below the amount in controversy in an individual action, which does bind all relevant parties (i.e., there are no absent contingent parties).  The Court went so far as to say that the district court “should have ignored that stipulation.” Instead, the Court directed district court’s the proper process is simply “to add[] up the value of the claim of each person who falls within the definition of [the] proposed class and determine whether the resulting sum exceeds $5 million. If so, there is jurisdiction and the court may proceed with the case.”  In so concluding, the Court cited with approval Frederick v. Hartford Underwriters, 683 F.3d 1242, 1247 (10th Cir. 2012), where the Tenth Circuit rejected an attempt by a plaintiff to avoid federal jurisdiction by pleading in the prayer that the class was seeking only “a total award for compensatory and punitive damages [that] does not exceed $4,999,999.99.”

How This Impacts Ninth Circuit Precedent

Although I have never encountered a purportedly “binding stipulation” that the amount in controversy is less than $5 million in a class action, it is common in wage/hour cases filed in California for the plaintiff’s counsel simply to plead in an unverified complaint that the amount in controversy is less than $5 million. Under binding 9th Circuit precedent, Lowdermilk v. U. S. Bank Nat’l Ass’n, 479 F.3d 994, 995 (9th Cir. 2007), where a plaintiff includes such a statement in the complaint, the burden on the defendant to establish the $5 million amount in controversy is greatly raised to a “legal certainty” standard, meaning that “the party seeking removal must prove with legal certainty that CAFA’s jurisdictional amount is met.” This is contrasted with the general rule where the complaint is silent on amount in controversy that the employer merely must “prove by a preponderance of the evidence that the amount in controversy requirement has been met.” A key rationale for the Lowdermilk rule was that “it is well established that the plaintiff is ‘master of her complaint’ and can plead to avoid federal jurisdiction.”

There is no way to reconcile this reasoning with the Supreme Court’s in Standard Fire Insurance. Implicit in the Supreme Court’s reasoning is that pronouncements by the plaintiff about the amount in controversy should have no binding effect, but rather the district court should simply consider the claims pleaded, the number of potential class members, and the potential aggregate recovery for this class while “ignoring” the plaintiff’s asserted conclusions on amount in controversy. There is no logical reason why a formal stipulation to limit jurisdiction should have no impact on the CAFA analysis, while a mere statement in an unverified complaint that the amount in controversy falls below $5 million should have the impact of altering the burden of proof and making it harder for the defendant to establish amount in controversy.

Copyright © 2013, Sheppard Mullin Richter & Hampton LLP

Employee Retaliation Claims: Will the Supreme Court Stem the Tide?

Barnes & Thornburg

It was no surprise for practitioners and their clients alike to learn that, statistically, retaliation claims remain the largest number of claims brought before the EEOC (in 2012, almost 38,000 charges alleged retaliation—38.1% of all charges). Worse, retaliation claims are expensive to defend. This point is painfully highlighted in this week’s submissions with the U.S. Supreme Court.

Last week, the U.S. Chamber of Commerce (along with the Retail Litigation Center) filed with the Supreme Court an amici curiae brief in a case in whichretaliation is the central issue. The case, captioned Univ. of Texas Southwestern Medical Center v. Nassar (U.S. No. 12-484), has been appealed from the 5th Circuit.

The underlying case arose when a doctor was not hired after he complained about his treatment at another organization. But, his complaint is of little consequence on the big stage. The central question before the Court—and the one on which the U.S. Chamber focuses—is the standard required to prove retaliation under the Civil Rights Act of Title VII.   Should employees be required to prove that their employers would not have taken an adverse action against them but for an improper motive?  Or, does the standard require employees only to show that an improper motive was one of multiple factors? The latter—a mixed-motive standard—is the one the 5th Circuit applied.

The U.S. Chamber’s brief argues that the “mixed-motive standard” lowers the bar for retaliation claims, resulting in increased costs for employers. The Chamber’s brief is boldly specific—it cites research estimating that in 1988, the cost of defending a wrongful discharge claim averaged more than $80,000.  The brief cites research supporting that today, it costs employers “possibly over $500,000 to defend a case at trial.”

As businesses on the front line, we, of course, already knew that.

Oral argument is scheduled for April 24, 2013.

You can follow the case and read the U.S. Chamber of Commerce’s brief at the SCOTUS Blog by clicking on the following link: University of Texas Southwestern Medical Center v. Nassar.

© 2013 BARNES & THORNBURG LLP

New Family and Medical Leave Act (FMLA) Regulations Effective: New Notice Poster and Model Forms Available

Poyner Spruill

As of March 8, 2013, employers with 50 or more employees are required to post the Department of Labor’s (DOL) new Family and Medical Leave Act (FMLA) notice poster incorporating the recently issued final regulations, which incorporate amendments made by the National Defense Authorization Act (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA).  The new notice poster can be found at the DOL’s website here.  Federal law requires that all covered employers post the FMLA notice in a conspicuous place, even if no employees are eligible for FMLA leave.  The deadline for employers to begin posting the new notice poster was March 8, 2013, so any employer who has not already done so should act now.

In addition to the new poster, the DOL has issued revised model forms that reflect the final regulations.  Most notably, the DOL has issued an all-new certification form: Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-V).  This form reflects the FMLA’s expanded provisions that allow eligible employees to use Military Caregiver Leave to care for a veteran who was (not dishonorably) discharged from the military within the past five years.

While there are several new provisions of the FMLA that relate to job–protected leave for airline personnel and flight crews, there have been significant changes made that apply to all employees.  Specifically, there have been significant changes made to Qualifying Exigency Leave which include the following: expanding the number of days that an eligible employee may take for rest and recuperation qualifying exigency leave, revising the definition of  “military member” for purposes of leave, changing the type of duty required for coverage, and granting certain employees leave rights to care for the parents of a military member.

In addition, Military Caregiver Leave under the FMLA has been expanded.  Under the new regulations, the definition of “covered servicemember” has been expanded to include covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness.  Under the final regulations, a “covered veteran” is an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.  Moreover, the definition of a “serious injury or illness” for a current servicemember has been expanded to include injuries or illnesses that existed before the beginning of the member’s active duty that were aggravated by service in the line of duty while on active duty in the Armed Forces.

For more detailed information, the DOL’s side-by-side comparison of the 2008 and 2013 regulations can be found here.

While many of the changes relate to provisions that are seldom used by most employers (with the exception of airlines), every FMLA-covered employer must post the new notice poster and should review its forms and policies to ensure compliance with the new regulations.

© 2013 Poyner Spruill LLP

USCIS Correction: Most Employers Must Complete English Version I-9

Varnum LLP
On March 12, 2013 the USCIS announced the new Form I-9 is available and may be completed in English or Spanish. Today, March 13, 2013, USCIS clarified that Spanish I-9 is available for completion only by Puerto Rico employers.
USCIS incorrectly announced full use during a teleconference but has now clarified onwww.USCIS.gov that the Spanish new form I-9 may not be used by employers (except Puerto Rico employers). Employers may continue to use the Spanish form for reference, but the English version must be completed.

The new Form I-9 is available in English and Spanish. In addition, USCIS has published aHandbook for Employers to provide guidance for completing the new Form I-9.

Employers are required to use the new Form I-9 beginning on May 7, 2013, but it may be used immediately. USCIS will accept prior versions of Form I-9, “(Rev. 08/07/09) Y” and “(Rev. 02/02/09) N”, until May 7, 2013.