In a critical follow-up to Kruchowski, et al. v. The Weyerhaeuser Company, a case we first brought to your attention in December, the Oklahoma Supreme Court has again expanded the scope of damages available to employees asserting certain discrimination claims against Oklahoma employers.

On February 24, 2009, the State’s highest court issued its opinion in Shirazi v. Childtime Learning Center, Inc., casting additional light on the so-called “public policy” wrongful discharge claim under Oklahoma law.  Reversing a litany of cases extending nearly 20 years, the current court has declared that “public policy” tort claims should be available to plaintiffs alleging wrongful discharge based upon race, color, religion, sex, national origin, or handicap.  This ruling expands upon the holding of Kruchowski, which provided the same “public policy” claim to purported victims of age-based wrongful termination.

This ruling will undoubtedly usher in a significant change in the litigation of wrongful discharge claims in Oklahoma.  Most importantly, the broad availability of this cause of action will expose Oklahoma employers to nearly unlimited damages in routine discrimination cases – effectively eliminating the well-known damage caps provided under federal employment laws.

Background

Since 1989, the Oklahoma Supreme Court has recognized a cause of action for at-will employees that claim to have been terminated in violation of the expressed “public policy” of Oklahoma.  These “public policy” claims are also known as “Burk tort” claims, after the 1989 case that first recognized the legal theory.

However, almost immediately following Burk, courts refused to allow a “public policy” claim in cases of traditional discrimination, even though the public policy expressed in the Oklahoma Anti-Discrimination Act (“OADA”) clearly prohibited such discrimination.  The courts routinely concluded that no state law cause of action was necessary in such cases because federal anti-discrimination laws provided adequate remedies for victims of illegal discrimination.

This distinction has always been of critical importance.  Federal anti-discrimination laws generally provide caps on certain forms of damages.  For example, a successful race discrimination plaintiff suing under Title VII of the Civil Rights Act of 1964, a federal law, cannot recover more than $300,000 in punitive and emotional distress damages – even against a very large employer.  Although back pay, front pay and attorney’s fees may be added to this sum, Title VII claims are typically susceptible to a reasonable calculation of maximum exposure to the employer.  And, multi-million dollar verdicts from emotional juries are routinely reduced pursuant to the caps provided by federal law.

Oklahoma’s “public policy” tort claim carries no such damage caps.  Thus, the courts’ initial refusal to apply the Burk legal theory to ordinary discrimination claims kept the maximum exposure calculation available to employers.

A New Trend

Consistent efforts by the plaintiff’s bar in Oklahoma have now resulted in the reversal of this long-held precedent.  In Kruchowski, the Oklahoma Supreme Court held that the Oklahoma Constitution requires uniform remedies be made available to all members of a given class.  Specifically, the Court concluded that victims of age discrimination are not provided the same remedies as those available to victims of other forms of discrimination, and therefore, a “public policy” claim should be available to those plaintiffs.  Thus, after Kruchowski, a purported victim of age discrimination is no longer limited to the recovery of back pay and “liquidated” damages under the federal Age Discrimination in Employment Act (“ADEA”).  Rather, he could now recover essentially unlimited damages under the “public policy” framework.

The Kruchowski Court left open the possibility, however, that such a ruling would only apply to age discrimination plaintiffs.  The Shirazi opinion, issued on February 24, 2009, forecloses that hope.  The Court has now made clear that:

[A] plaintiff may pursue a state law Burk tort claim for wrongful discharge in violation of public policy when the available remedies to the same class of employment discrimination victims are not the same - regardless of whether the remedies originate under federal or state law.  Lest there be any mistake, pursuant to the Oklahoma Anti-Discrimination Act, 25 O.S. 2001 §1302, race, color, religion, sex, national origin, age, and handicap are the types of discrimination within the same employment class to which we refer.

It is beyond dispute that, when examining both federal and state laws, the remedies available to these groups of individuals are not “the same.”  Thus, the Oklahoma Supreme Court has now, in direct contradiction to its prior pronouncements, expressly provided a state law “public policy” cause of action for victims of discrimination.  Without the damage caps provided by federal law, maximum exposure for an employer in a discriminatory discharge case is simply no longer quantifiable.  That is exposure is, for the most part, now unlimited.

Another significant result of this ruling will be a change in the venue of most wrongful discharge cases.  Because discriminatory discharge cases have, until now, been decided under federal law, employers have insisted upon trial in federal, rather than state, courts.  These federal venues have traditionally provided several advantages to employers over state courts, including stricter adherence to procedural and discovery rules, as well as more favorable jury pools and better results with summary judgment motions.  Now that employees are able to file a state law “public policy” claim, employers will most often be precluded from seeking trial in federal court.  Simply put, better plaintiffs’ lawyers will likely file solely state law claims – with no federal law at issue, the federal courts will have no jurisdiction over the case.

The Bottom Line

While the December Kruchowski decision hinted at a sea-change in Oklahoma employment litigation, the text of the opinion left some doubt as to its full effects.  The Shirazi decision erases all such doubt.  Absent immediate intervention by the Oklahoma legislature to significantly amend or repeal the OADA, which forms the basis of both decisions, litigation of wrongful discharge claims in Oklahoma will be significantly changed by the Shirazi decision.  Employers now face unlimited financial exposure in more hostile court rooms, where their termination decisions will be increasingly scrutinized.

Now, more than ever, employers must ensure that termination decisions are based upon legitimate, non-discriminatory and non-retaliatory justifications, and that underlying documentation supports those justifications.  Employers should further consider implementing a mandatory arbitration program to limit the effect of potential runaway juries.

As always, should you have any questions about this change in Oklahoma law, or possible ways to minimize its impact, please contact any of McAfee & Taft’s Labor and Employment attorneys.

This Alert has been provided for information of clients and friends of PremierSource. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Alert without seeking professional counsel.

On February 18, 2009, the United States Court of Appeals for the Tenth Circuit issued a long-awaited decision regarding the right of Oklahoma employers to ban firearms from their property.  Reversing a lower federal court decision in favor of employers, the appellate ruling reinstates a controversial Oklahoma statute that prohibits Oklahoma employers from maintaining certain anti-firearms policies.  Employees are once again protected by Oklahoma law from any policy that “has the effect of” prohibiting the transport or storage of firearms in locked vehicles, even on private company property.

Background

In March of 2004, the Oklahoma legislature enacted a series of laws limiting an employer’s ability to prohibit firearm possession by employees on company property.  For example, the Oklahoma Firearms Act of 1971 was amended to provide, in relevant part, as follows:

No . . . employer . . . shall maintain, establish, or enforce any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked motor vehicle, or from transporting and storing firearms locked in or locked to a motor vehicle on any property set aside for any motor vehicle.

21 Okla. Stat. §1289.7a(A).

At the same time, the Oklahoma Self-Defense Act of 1995 was amended in a similar manner, using nearly identical language.  21 Okla. Stat. §1290.22. 

In their original form, these amendments established standards of criminal conduct, and a violation could result in a misdemeanor criminal conviction.  Whirlpool Corp. v. Henry, 110 P.3d 83 (Okla. 2005).  However, the laws were subsequently further amended to provide an aggrieved employee with a right to pursue a civil action in court to obtain actual damages, injunctive relief and attorney’s fees.  21 Okla. Stat. §1289.7a(C).

Critics of the amendments argued that the presence of firearms on company property could contribute to workplace violence, as well as increased employer liability for accidental and intentional gun-related injuries.  Furthermore, employers argued that the amendments invaded upon a private property owner’s right to prohibit firearms from his or her private property.  Proponents of the laws, on the other hand, argued that these amendments merely protected employees’ Constitutional rights to bear arms.

Legal Challenge to the Amendments

In October of 2004, a group of Oklahoma employers filed suit in federal court challenging the validity of the referenced amendments under a variety of legal theories.  In October of 2007, after rejecting several of those theories, the court issued a permanent injunction prohibiting the enforcement of the new Oklahoma laws, finding them to be preempted by federal law.  More specifically, the Court concluded that the Oklahoma amendments served as a “serious obstacle” to employers attempting to meet their obligations under the “general duty” clause of the federal Occupational Safety and Health Act (the “OSH Act”).[1]  Therefore, according to the lower court, the Oklahoma amendments were preempted by federal law and unenforceable.

This week, the United States Court of Appeals for the Tenth Circuit issued its opinion on the resulting appeal and reversed the district court.  Specifically, the appellate court concluded that the presence of firearms on company property did not trigger a violation of the OSH Act “general duty” clause, and therefore, no “serious obstacle” was presented by the Oklahoma amendments.  The court also rejected the employers’ contention that these laws improperly interfered with the rights of private property owners.  And finally, the appellate court concluded that the district court’s injunction was an improper interference by federal courts with Oklahoma’s inherent right to police the conduct of its citizens.

The Bottom Line

This week’s opinion by the appellate court reinstates the amendments to full force.  Thus, it is once again a violation of Oklahoma law to “maintain, establish or enforce” any policy that “has the effect of” prohibiting the transport or storage of firearms in locked vehicles in designated vehicle areas, even on private company property.   

Although this matter may certainly be further appealed, the likelihood of such action is not yet clear.  Therefore, effective immediately, Oklahoma employers should examine their existing policies to ensure conformity with these provisions, and refrain from any efforts to enforce a prohibited policy.

Of course, going forward, it is important to keep in mind the limited scope of these laws.  Employers may not prohibit an employee from storing or transporting a firearm in a locked vehicle on property designated for vehicles.  However, nothing in the relevant amendments or the resulting court opinions prevents an employer from prohibiting firearms in its buildings, on sidewalks, or otherwise outside of a locked vehicle in a designated vehicle parking area.

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[1]  The “general duty” clause under the OSH Act requires that “[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

This Alert has been provided for information of clients and friends of PremierSource. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Alert without seeking professional counsel.

On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (ARRA). This new law includes provisions for a nine-month subsidy of COBRA premiums for employees who are involuntarily terminated. The law also imposes additional administrative and notice requirements on employers that require immediate attention.

The COBRA Subsidy
ARRA provides that beginning March 1, 2009, the federal government will subsidize 65% of the COBRA premium for an “assistance eligible individual,” provided that individual pays the remaining 35% of the COBRA premium.   The 65% portion will be reimbursed by means of a payroll tax credit to the employer, in the case of a self-insured plan, and the insurer, in the case of an insured plan.  The Secretary of the Treasury will issue guidance on how a claim for the tax credit is to be filed.

Assistance Eligible Individual
An “assistance eligible individual” is any person who becomes eligible for COBRA between September 1, 2008, and December 31, 2009, due to the employee’s involuntary termination of employment.  However, the full subsidy is not available for individuals with adjusted gross income that exceeds $250,000 (for joint filers) or $125,000 (for all other filers).   Any portion of the subsidy that an individual receives but is not eligible for will need to be reported on the individual’s annual income tax return.    As a result, employers will not need to determine whether an individual’s income makes him ineligible for the subsidy.

Special Election Notice to Previously Terminated Employees
ARRA requires that any individual who would have qualified for the subsidy except that they did not elect COBRA as of February 17, 2009, must be provided a 60-day period to elect the subsidized COBRA continuation coverage.   Consequently, employers must send a notice to such individuals informing them of their election rights.  If the individual elects coverage, coverage would begin March 1, 2009.

Electing a Different Coverage Option
The new law provides that an employer may, but is not required, to allow an individual who is eligible for COBRA premium assistance to change his health insurance coverage option when making a COBRA election under the employer’s plan.

Notice Requirements
ARRA requires plan administrators to modify COBRA election notices to describe the new premium subsidy.   The Departments of Labor, Treasury and Health and Human Services will develop a model notice for this purpose within 30 days of the enactment of the new law.

Action Items
While we certainly hope that additional guidance will be forthcoming from the government regarding the implications of the new law, the following are some suggested initial steps that should be undertaken by employers:

• Compile a listing of all assistance eligible individuals who must be notified of the availability of COBRA with the subsidy.
• Update COBRA forms and notices or contact your third party administrators to ensure compliance with the new law.
• Revise COBRA billing systems.
• Have your payroll department or vendor prepared to be able to claim the payroll tax credit to recoup the COBRA premium subsidy.
• Review severance plans and arrangements to determine how they will be affected by ARRA.

For additional information, please contact McAfee & Taft employee benefits attorneys John Papahronis, Jim Prince, Bill Freudenrich or any member of McAfee & Taft’s Employee Benefits Practice Group.

This Alert has been provided for information of clients and friends of McAfee & Taft and PremierSource. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Alert without seeking professional counsel.

Oklahoma’s immigration law, House Bill 1804, contains a number of employment provisions, including limitations on discharging employees while knowingly retaining unauthorized workers and requiring verification of employees’ legal work status. On February 11, Tulsa District Court Judge Jefferson D. Sellers ruled that the immigration law’s employment provisions don’t violate the Oklahoma Constitution.

Oklahoma employers should keep in mind that in June 2008, an Oklahoma City federal court held that the Oklahoma immigration law’s employment provisions shouldn’t be enforced because they violated federal law (see Employment Law Alert from June 5, 2008, "Federal Judge Blocks Enforcement of Employer-related Sections of Controversial Immigration Law"). That ruling is presently on appeal to the federal court of appeals in Denver.

The bottom line is that the employment provisions of HB 1804 are still not applicable to Oklahoma employers unless the federal court of appeals overturns the Oklahoma City federal court's decision.

As an aside, Judge Sellers’ February 11 order included the following observation: “The population of Oklahoma on the eve of statehood was certainly a unique gathering of souls. Some came here under forced march; others came more willingly, as did those who immigrated in the land runs.”

That’s something we may want to keep in mind. We will continue to keep you advised of immigration law developments. If you have further questions, please do not hesitate to contact any of McAfee & Taft's labor and employment attorneys.

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This Alert has been provided for information of clients and friends of McAfee & Taft and PremierSource. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Alert without seeking professional counsel.

Elizabeth Wood, a labor and employment attorney with PremierSource's strategic alliance partner McAfee & Taft, wrote an eye-opening piece for the February 2009 issue of the Oklahoma Employment Law Letter about what employers can face when an employee's been terminated, even in the most justifiable circumstances.

When Wal-Mart decided to fire one of its managers for alleged misconduct, it probably thought it was an open-and-shut case. But as we all know, every termination carries risks.

Background
Kenneth Cooper, who is African American, started working as the manager of a Wal-Mart store in Silver City, New Mexico, in 1998. In 2005, the company received an anonymous call on its ethics hot line. The caller alleged misconduct by Cooper. After Wal-Mart investigators interviewed more than 20 employees and examined dozens of pages of documents, they gave Senior Vice President Michael Moore a written report reflecting their findings. In turn, Moore ordered Cooper’s direct supervisor, Andrade, to fire him.

Investigation
The investigation found that Cooper violated the company’s conflict-of-interest policy by traveling as the only management employee with an otherwise all-female group of hourly employees on an overnight trip to a Wal-Mart distribution center in Arizona. To make matters worse, when some of the group returned to Silver City, Cooper and several others went shopping in Tucson and spent another night “on the company’s dollar.”  Apparently, not only did Cooper charge Wal-Mart for the meals and hotel rooms for the extra night, but he also let the employees who participated in the shopping junket claim eight hours on their time sheets for that day.

And there was more. The investigation also found evidence that Cooper was showing favoritism toward a particular female subordinate. Among other things, he awarded her a $250 gift card, put items on layaway for her in his name, and increased her pay substantially more than others in her position. According to the investigation report, another employee observed him visiting her home several times for up to 30 minutes each time.  He then offered to remove a disciplinary action from the file of the employee who saw him if she agreed not to tell anyone he was seen leaving the favored woman’s neighborhood.

The investigation revealed a host of other transgressions, including accusations that Cooper:

• threatened employees with retaliation if they reported any of his transgressions to his boss or to the company’s loss prevention department;
• made sexually suggestive comments during store meetings;
• demoted an employee without following the standard disciplinary procedure;
• gave $25 gift cards to employees who danced with him at a company party; and
• directly billed Wal-Mart for his wife’s hotel room.

Cooper’s exit interview form stated that his termination was based on “Gross Misconduct — Integrity Issue,” which was defined on the form to include misappropriation of company assets. In addition to writing a response disagreeing with the reasons given for his discharge, Cooper reported allegations of misconduct against other Wal-Mart employees. Again, there was an investigation — this time into Cooper’s allegations — and again, Moore was given a written report of the findings. Based on the report, Moore decided who would be disciplined and to what extent. Even though it seemed as if Wal-Mart had the goods on him, Cooper filed a race discrimination lawsuit.

So what were the potential problems in what looked like an open-and-shut case for Wal-Mart?

Cooper counterattacks
First, Cooper complained there was evidence disputing the findings in the investigative report regarding his misconduct. For example, he presented evidence showing that the remarks he made (or supposedly made) at store meetings were not intended to be (or taken as) sexually suggestive. Since no complaints were ever made to his supervisor about the remarks, he was able to show that employees were not offended by the comments.

Cooper presented evidence disproving the accusation that he exceeded his authority as store manager by raising the salary of his purported “favorite” and showing that the $250 gift card he gave her was approved by Andrade. In addition, he showed that he hadn’t directly billed Wal-Mart for his wife’s hotel room but that he had given cash to another Wal-Mart employee to pay the bill. Cooper argued that the factual inaccuracies were so “fishy and suspicious,” they cast doubt on all the other reasons for his termination. Evidence that Wal-Mart’s stated reasons for his termination were false could show that the stated reasons for the discharge were actually a pretext for race discrimination.

Next, Cooper argued that Wal-Mart’s reasons for his termination were a pretext for race discrimination because he was treated differently than other non-African American employees who also violated company policy. In comparing the decisions Moore made in Cooper’s investigation to the decisions he made in the investigation of other store managers, Cooper alleged disparate treatment. None of the other store managers was fired, as Cooper had been, although Moore did demote at least one manager in connection with his investigation.

Finally, Cooper argued there were procedural irregularities in the investigation and the way his termination was handled that could convince a jury he was terminated because of his race. He specifically relied on Wal-Mart’s progressive discipline policy, its “Respect for the Individual” policy, and its “Open Door” policy to argue that the firing was tainted, mainly because he wasn’t asked for his side of the story before Moore made the decision to let him go.

Court struggles
The federal appeals court wrestled with Cooper’s position. Factual errors in an investigation can, in some cases, point to discrimination. The court was also troubled to learn that other employees who violated policies received less severe discipline. Finally, Wal-Mart’s departure from its own investigation and disciplinary policies caused the appeals court to scrutinize the situation. Ultimately, the trial court’s decision in favor of the employer was upheld — but not without some close calls. Cooper v. Wal-Mart Stores, Inc., Case No. 07-2290 (10th Cir., 10/16/08).

Conclusion
In the end, Wal-Mart prevailed. But Moore — and all employers — can take the following lessons from this experience for future employee terminations:

• Be sure that investigators don’t overstate their findings and that the information relied on by the decisionmaker is accurate. If there are doubts about some of the allegations, don’t use them as part of the reason for termination.
• Know the details of how other employees who have had similar policy violations have been treated. If they weren’t terminated, confirm that their offenses were less serious or that they were not similarly situated to the employee in question for other reasons.
• Before making any decision, review your policies and past practices. If your policies have mandatory procedures, follow them to the letter. Even if your policies are discretionary but you have always handled investigations and separations in a certain way, don’t change what you have done in the past without good — and documented — business reasons.

Consider this case a cautionary tale: There is no such thing as an open-and-shut case when it comes to firing an employee.

The author can be reached at elizabeth.wood@mcafeetaft.com.

"This ruling has been well-received by plan sponsors and administrators," Corley told The Oklahoman. "The court’s decision favors putting the burden on the participant to ensure that they provide appropriate documentation to the plan sponsor or administrator — and supports plan sponsors and administrators in recognizing that they can only act on the documentation they have been provided."

Corley said that the ruling reaffirms that plans sponsors and administrators can rely solely upon the plan documents and related forms to determine who's eligible to receive retirement plan distribution rather than having to look to outside documents for guidance.

"In this case, the ex-spouse agreed to waive her rights to her ex-husband’s benefits, but a qualified domestic order (QDRO) was never completed or submitted and the beneficiary documentation was never updated to remove the ex-wife as beneficiary," Corley told The Oklahoman. "The plan sponsor had no choice but to issue the distribution to the ex-wife as the named beneficiary on file. Any other decision would have put a significant burden on plan sponsors and administrators."

Corley also said that the ruling's impact could extend beyond pension benefits.

"The same methodology could apply to individuals who establish trust documents and then forget to change the ownership of assets to fund their trusts or update trust beneficiary documentation," she said. "This ruling should serve to increase awareness and could ultimately serve as a precedent to trustees, financial institutions and administrators in many of these additional areas."

You can read the entire article here.

U.S. Citizenship and Immigration Services (USCIS) has delayed the effective date of the new Form I-9 for 60 days until April 3, 2009.  In December 2008, USCIS published an interim final rule intended to streamline the employment eligibility verification process in which an employer completes USCIS Form I-9 for each newly hired employee, or in some cases, for re-verifying the employment authorization of existing employees.  The interim final rule and revised USCIS Form I-9 narrowed the list of acceptable identity documents and prohibited any expired documents from being used for identification.  

The interim final rule was to have taken effect on February 2, 2009.   Employers would have been required to use the revised Form I-9, dated 02/02/2009, for all new hires and to re-verify any employee with expiring employment authorization on and after that date.  However, the current version of Form I-9, dated 06/05/2007, should remain in use until at least April 3, 2009, or further notice. 

Employers should continue to follow standard Form I-9 procedures.  Employers must complete Form I-9 for each newly hired employee to verify his or her identity and authorization to work in the United States. The list of approved documents that an employee can present to verify his or her identity and employment authorization is divided into three sections: List A documents verify identity and employment authorization, List B documents only verify identity, and List C documents only verify employment authorization.   An employee may present one document from List A or one document from each of List B and List C. 

The revised Form I-9 eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A. USCIS no longer issues these cards, and all those that were in circulation have expired. Added to List A are (a) a foreign passport with a temporary I-551 stamp or a temporary I-551 printed notation on a machine-readable immigrant visa, (b) documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), and (c) the new U.S. Passport Card. The new form has other changes, such as revisions to the employee attestation section. In “Section 1 – Employee Information and Verification,” an employee can now attest to being either a citizen or noncitizen national of the United States.

If you have further questions, please do not hesitate to contact Richard Salamy at (405) 552-2232 or any of the Labor and Employment attorneys. 

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This Alert has been provided for information of clients and friends of McAfee & Taft and PremierSource. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Alert without seeking professional counsel.

Whatley said the 7th Circuit Court of Appeals reversed a lower court's judgment in favor of an employer who had fired an employee after she had "a strong emotional and physical reaction when a stray puppy wandered into her workspace. 

"The employee engaged in bizarre and threatening behavior, called in sick day after day due to the stray dog, and failed to provide necessary medical certification to justify a medical leave of absence. The court found that the employee’s unusual behavior constituted “constructive notice” of the need for FMLA leave in the same way that watching an employee break a leg would constitute notice."

Whatley also discussed other new developments regarding FMLA that employers should be aware of, including key changes in some new proposed regulations. One of the proposed regulations would allow male employees to take protected leave when attending prenatal appointments with a spouse.

 You can read the entire article here.

You can read the entire article here.

PremierSource's strategic alliance partner McAfee & Taft has published an important Employment Law Alert regarding new developments with immigration law requirements, particularly with federal contractors.

On June 9, 2008, President Bush published an amendment to Executive Order 12989 that requires all employers who contract with the federal government to use an electronic employment eligibility system. That same day, the U.S. Department of Homeland Security (DHS) designated E-Verify as the required verification system.  E-Verify is a free, internet-based employment verification system operated by DHS and the Social Security Administration (SSA).

Based on the premise that a legal workforce is a more stable and dependable workforce, Executive Order 12989 now provides that federal departments and agencies may not enter into contracts with employers who do not use E-Verify. The Executive Order also requires that federal contractors agree to use E-Verify to verify the employment eligibility of: 1) all persons hired by the contractor during the contract term to perform employment duties within the U.S.; and 2) all persons assigned by the contractor to perform work within the U.S. on the federal contract.

DHS will publish a proposed rule in the Federal Register to clarify the effective date of this new requirement and whether it will apply only to new federal contracts and newly-hired employees and contractors or also apply to existing federal contracts and current employees and contractors.  This clarification is important since DHS currently prohibits employers from using E-Verify to verify the employment eligibility of any person other than newly-hired employees.  DHS Secretary Michael Chertoff anticipates that the new requirement will be applicable only to new federal contracts and new employees assigned to existing federal contracts. 

This new requirement was announced less than one week after an Oklahoma federal district court judge issued a temporary injunction prohibiting the enforcement of a provision of Oklahoma’s HB 1804 that would have required certain employers contracting with Oklahoma state entities to use E-Verify or the Social Security Number Verification Service (SSNVS) to verify all employees hired on or after July 1, 2008.  

We recommend employers determine whether they are a party to any contracts affected by the Executive Order and await publication of the proposed rule by DHS.  If you have further questions regarding this Executive Order or other immigration and compliance issues, please do not hesitate to contact any of McAfee & Taft's Labor and Employment attorneys.

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This Alert has been provided for informational purposes only. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this alert without seeking professional counsel.

On Wednesday, June 4, 2008, a federal court in Oklahoma City issued an order temporarily enjoining the State of Oklahoma from enforcing certain business-related sections of HB 1804, the immigration law passed by the Oklahoma Legislature in 2007.

In the case, the U.S. Chamber of Commerce, the Oklahoma State Chamber of Commerce, the Oklahoma City Chamber of Commerce and the Tulsa Chamber of Commerce, together with other industry groups, challenged the constitutionality of portions of Section 7 and all of Section 9 of HB 1804, and requested injunctive relief to prevent the enforcement of these sections.

Section 7 contains two business-related provisions. First, Section 7(B) would require private employers who provide services to public employers (meaning Oklahoma government entities) to use the federal internet-based “E-Verify” system or other electronic verification system authorized by HB 1804 to verify work eligibility for new employees. Second, Section 7(C) would provide a basis for a discriminatory practice claim by any U.S. citizen or permanent resident employee who was discharged by an employer, if the employer retained an unauthorized worker in the same or similar position. Employers could protect themselves by using E-Verify or another statutorily-permitted verification system.

Section 9 would require any private or public entity contracting with an “individual” independent contractor for physical services in Oklahoma to either verify the contractor’s work authorization or withhold income taxes from the contractor’s compensation.

These provisions of Sections 7 were originally scheduled to take effect on July 1, 2008. Section 9 has been in effect since November 1, 2007.

The ruling by the Court states that the Chambers of Commerce established a substantial likelihood of prevailing on their claims that the federal Immigration Reform and Control Act of 1986 preempted Sections 7(B) and (C) and Section 9 of HB 1804. The Court temporarily enjoined the State of Oklahoma from enforcing these provisions pending a final determination of the Chambers’ claims.

The Court’s ruling means that Sections 7(B) and (C) of HB 1804 will not become effective on July 1, 2008 and neither these Sections nor Section 9 will be enforceable against private or public employers until a final ruling by the Court. Except for these provisions of Sections 7 and 9, all other provisions of HB 1804 remain in effect.

If you have further questions concerning the Court’s decision or the impact of other provisions of HB 1804, please do not hesitate to contact any of McAfee & Taft's Labor and Employment attorneys.

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This Alert has been provided for informational purposes only. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this alert without seeking professional counsel.

More than 400 people attended the "Spring Training" Labor & Employment and Employee Benefits Seminar on Wednesday, May 21st, at the Cox Business Services Convention Center in downtown Oklahoma City. The event was presented by McAfee & Taft and co-sponsored by PremierSource. It set a new attendance record for the seminar, which has continually grown in popularity with each event.

Attendees filled to capacity the opening session to listen to the Employment Law Update presented by Nathan Whatley, McAfee & Taft shareholder and leader of the firm's Labor & Employment Practice Group.

Afterward, there were nine breakout sessions that attendees could choose from, including sessions about arbitration agreements, FMLA and USERRA issues, monitoring employees in the workplace and on the Internet, planning of workforce reductions, tracking changes to immigration laws, reducing workers' compensation claims, attracting and retaining key employees and auditing retirement plan products and fees.

PremierSource president Teah Corley presented a session entitled "Team Employer vs. Team Underwriter." With co-presenters Susan Clarke and Jeff Marchino of Aetna, the session explored what every employer should know about the underwriting of their health plan.

On the heels of such a successful seminar, McAfee & Taft and PremierSource are already looking forward to its future events with Labor & Employment and Employee Benefits seminars planned in the fall for both Oklahoma City and Tulsa.

Corley has served as the growing company’s executive vice president and chief operating officer since its founding and will continue to oversee the daily operations of the firm and its various business units.  In recent years, PremierSource has expanded its service offerings to include extended human resources, compliance and wellness consulting to complement its employee benefits, risk management and business financial planning services.

Corley is a member of the SouthWest Benefits Association, the National Association of Health Underwriters, and the state chapter of the Society of Human Resources Management.  She serves on the national accounts broker advisory council for Aetna, and has served on task forces for the Oklahoma Insurance Department’s Summit on the High Cost of Health Insurance.  She additionally serves as a business advisory board member for the Greater Oklahoma City Chamber of Commerce.

PremierSource specializes in providing employers with a single-source solution to comprehensive human resources, employee benefits, compliance, risk management and business planning solutions incorporating the resources of a national network of “best-in-class” specialists.

On January 28, 2008, President Bush signed into law The National Defense Authorization Act (“NDAA”) for 2008. This new law amends the Family and Medical Leave Act to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” The covered “serious injury or illness” is one that was incurred in the line of duty while on active duty. “Next of kin” is the nearest blood relative of the injured/sick service member. The effective date of this new leave entitlement is January 28, 2008, the date President Bush signed it into law.

In addition to the new leave entitlement, the 2008 FMLA amendment also provides for an expansion of FMLA leave entitlement, permitting an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” This provision of the NDAA will not become effective until the Department of Labor issues its regulations defining “any qualifying exigency.”

In summary, the 2008 NDAA amendment to the FMLA expands an employee’s FMLA entitlement as follows:

• By giving the employee up to 26 workweeks because a listed military family member has a serious injury or illness incurred in the line of duty while on active duty — this provision is effective now.
• By expanding FMLA leave entitlement — i.e. the 12 workweeks — to cover dislocations and the like caused by a call to active duty — this provision is awaiting the USDOL’s regulation before it becomes effective.

If you have an questions regarding these changes in the FMLA laws or any other employment law matters, call (405) 228-2699 or email us and we'll connect you with a well-qualified employment law attorney.

Meet the insurance audit. Increasing numbers of employers are requesting personal documents to ensure that all the dependents in their health care plans are entitled to coverage.

With insurance costs rising faster than inflation for a decade, they want to verify that you’re actually married to the person receiving spousal benefits, or that your 19-year-old son really is enrolled as a full-time student. If you can’t produce proof, the dependent loses coverage.

“There has been a significant growth of interest in conducting these types of reviews,” said Daniel Priga, a Pittsburgh-based principal for the Mercer workplace consulting firm, where the workload conducting audits has doubled in each of the past two years. “This is a hot one.”

“The high turnover industries are the most likely to do them: service, retail, banking,” adds Susan Johnson, a senior consultant with Watson Wyatt Worldwide in Chicago. “Everybody’s at least talking about them. It’s grown exponentially in the last 18 months.” (Read full article here.)

It is a little-known statistic that more than 10% of employees on average enroll ineligible dependents on their health plans.  Coverage for ineligible dependents can cost your company 5% or more of your total health plan expenditures (10% is common but our dependent eligibility audit teams have seen as high as 15%).  High costs limit an organization's ability to offer the most attractive benefits possible.  Employers also need to be aware of the potential corporate and personal risks involved with fiduciary irresponsibility in relation to ineligible dependent abuse.  This fiduciary responsibility is outlined in the Exclusive Benefit Rule for Fiduciaries under ERISA.
 
PremierSource has developed resources to assist employers in this arena and meet them where they are at in the process of identifying their dependent eligiblity abuse.  It is important for employers to be aware of the national benchmarks for dependents -- currently, the average dependent per employee is 1.6.  If your plan's average dependents per employee is significantly higher than this, you may want to dig a little deeper to determine whether or not your plan is being abused or is at risk for abuse.  For some employers, it may be enough to implement basic dependent eligibility verification safeguards to help mitigate potential abuse.  Others may need to take the next steps toward implementing a random audit.  Employers who have experienced great abuse on their plans or who suspect abuse on their plans may need a more comprehensive audit.  PremierSource offers turnkey solutions at every level to help meet employers where they are at in reducing the risk of potential abuse on their plans.
 
If you suspect dependent abuse on your plan, please call now for a complimentary preliminary evaluation of your program.
 

While it sounds counterintuitive at first, experts in the health-care industry are suggesting that companies that implement wellness programs are now starting to show returns on those investments, specifically in the form of lower health-care costs.

“CFOs have always viewed health care as an expense, but rarely as an investment” said Jerry Ripperger, director of consumer health at the Principal Financial Group. “But improving the health of your employee base, rather than simply providing reimbursements, is an exercise in risk management with a true ROI.” (You can read the entire article here.)

Studies show that for any given plan, approximately 4% of the plan participants are driving approximately 60% of the total plan costs.  So disease management/wellness programs and the industry as a whole pour millions of dollars into treating that 4%.  But what is happening to the other 95% of the plan population who are walking around with unknown risk factors that will eventually put them in the 4% category?  Unfortunately, in general -- not much.

PremierSource has identified and partnered with leading specialists in the industry who have developed a unique program for identifying and preventing the “next round of 4% drivers” before they ever jump into the 4% category.  Where the industry as a whole seems to be taking a shotgun approach to wellness, spending hundreds of thousands of dollars on wellness programs that appeal to the masses but affect very little overall impact, our teams begin with a rifle approach to specifically targeting high risk candidates.  From there, we help employers develop customized programs to impact the greatest change among those at highest risk for developing metabolic disease.  We’re helping to catch them early -- before they become your 4% claims drivers!

Our unique programs further allow employers to integrate health risk assessment data and utilization data to begin to truly quantify the impact of wellness programs and the ROI of their wellness investments.  Through very sophisticated analysis and reporting,  over time employers can literally watch the progress of their plan population moving from high metabolic risk categories, to moderate and low risk categories…and in the process, review reports that help them calculate both the opportunity cost and the overall ROI.

ANN ARBOR, MI – As 2008 begins, millions of Americans are having to dig deeper into their own pockets every time they refill a prescription or see a doctor.

But a new study finds that instead of going up, co-pays should go down – at least for some people taking some drugs.

Just by cutting a few dollars off the co-pay, the study suggests, employers could increase the chances that employees with chronic illnesses will take certain preventive medicines. And that could pay off in the long run, in the form of fewer hospitalizations or emergency room visits for employees with diabetes, high blood pressure, asthma and other conditions.

Specifically, the study showed that a major private employer significantly increased the use of important preventive medicines among its employees by automatically making some medications free, and slashing co-pays for other drugs by 50 percent.  Meanwhile, another employer that kept its co-pays the same didn’t experience the same increase in use of preventive medicines.

The difference in medication use between chronically ill employees at the two companies was sizable -- even though all the employees in the study were also enrolled in special programs designed to help them take control of their diseases.

The study is published in the January/February issue of the journal Health Affairs by a team led by University of Michigan and Harvard University researchers. It is the first rigorous, controlled trial of a concept called “value based insurance design.”

That concept, introduced in the late 1990s by members of the research team, is based on the idea that there should be few barriers standing between a chronically ill person and the medications that can keep them well enough to work and to avoid health crises and complications related to their disease. Even a barrier of a few dollars is enough to keep people from using the medicines they need the most.

“Implementation of this rule is welcome news for America’s retirees, whether young or old,” said Commission Chair Naomi C. Earp. “By this action, the EEOC seeks to preserve and protect employer-provided retiree health benefits which are increasingly less available and less generous. Millions of retirees rely on their former employer to provide health benefits, and this rule will help employers continue to voluntarily provide and maintain these critically important benefits in accordance with the law.”

The EEOC proposed the rule in response to a controversial decision in 2000 by the U.S. Court of Appeals for the Third Circuit in Erie County Retirees Association v. County of Erie. The court held that the ADEA requires that the health insurance benefits received by Medicare-eligible retirees be the same, or cost the employer the same, as the health insurance benefits received by younger retirees. After the Erie County decision, labor unions and employers alike informed the EEOC that complying with the decision would force companies to reduce or eliminate the retiree health benefits they currently provided – leaving millions of retirees aged 55 and over with less health insurance, or no health insurance at all.

EEOC Vice Chair Leslie E. Silverman said, “The Erie County decision would have made most existing retiree health plans unlawful. EEOC’s new rule will ensure that employers can continue to offer their retirees much needed health benefits.” Silverman had testified on the rule before the U.S. Senate Special Committee on Aging in 2004 and before a subcommittee of the House Committee on Education and the Workforce in 2005.

The Commission’s rule has the support of key members of Congress, as well as the employer and labor communities, including such major organizations as the Society for Human Resource Management, the AFL-CIO, the American Federation of Teachers, the National Education Association, the American Benefits Council, and other influential groups.

Employers who provide retiree health benefits generally “coordinate” those benefits with Medicare by supplementing the government healthcare or by offering retirees a “bridge” benefit to cover health expenses after employees retire until they become Medicare-eligible. Until the 2000 interpretation, employers believed that the ADEA permitted them to coordinate any retiree health benefits they provided with Medicare without having to ensure that the benefits received by Medicare-eligible retirees were the same as those received by younger retirees.

To correct the problem, the new regulation provides an exemption for ADEA coverage for this common and longstanding employer practice. The Commission voted to approve this regulation on April 22, 2004, but the AARP sued the EEOC in early 2005 to prevent its publication. After several years of litigation, the EEOC emerged victorious as the Third Circuit Court of Appeals found that the rule was “a reasonable, necessary and proper exercise of [EEOC’s] authority.”

EEOC Legal Counsel Reed Russell said, “Our rule makes clear that it is lawful for employers to continue to provide retirees with the health benefits they currently receive. Contrary to what some interest groups have erroneously asserted, the rule will not require any cuts to retiree benefits.”

"Companies continue to realize the value of performance-based awards as a way to motivate and reward employees," said Ken Abosch, North American compensation practice leader at Hewitt Associates.  "Tying rewards to business performance keeps employees connected to the overall business strategy, and, in the end, is more meaningful than a 'feel good' holiday bonus."

Hewitt's 2007 holiday study of more than 350 organizations reveals that more than half (53 percent) have never offered a holiday bonus, while 10 percent have discontinued their programs.  Of those that canceled their holiday bonus initiatives, 53 percent did so between 2000 and 2007.  Companies said they eliminated holiday bonuses primarily due to cost (50 percent), development of pay-for-performance programs (37 percent), or difficulty in administering bonus programs (16 percent). Of those companies that never offered a holiday bonus program, 54 percent said that all rewards are tied to performance, 34 percent said it was due to cost, and 29 percent never considered such a program. 

Conversely, of the 35 percent of companies that will offer a holiday bonus program in 2007, 42 percent will provide gift cards, 41 percent will award cash, 25 percent will give employees a gift of food (e.g., turkey or ham), and 20 percent will give some type of catalog gift.  For the few who receive gift cards, the amount will likely go up this year with companies giving an average of $52, up from $37 last year.  The average cash gift given will be $842 compared to $837 last year.

Overall, organizations continue to provide holiday bonuses as a way to say thank you and/or show appreciation (69 percent), maintain tradition (11 percent) or boost morale (16 percent).  More than two-thirds (70 percent) of companies surveyed who offer holiday bonuses said that all employee groups are eligible, while 17 percent said only full-time employees are eligible.

Bonuses by Industry

Hewitt's study revealed that the prevalence of holiday bonus programs varies greatly across industries with the insurance industry leading the way (61 percent), followed by health care
(50 percent), manufacturing (39 percent), retail (37 percent), financial services (16 percent) and
the pharmaceutical industry (8 percent).

Employees Continue to See Boost from Variable Pay Plans

While U.S. workers can expect to see only modest base pay increases in 2008, they have the potential to earn more than three times as much through performance-related awards.  In 2007, actual company spending on variable pay as a percentage of payroll is 11.8 percent².   Spending on variable pay in 2008 is projected to remain strong at 11.6 percent.

"Variable pay is one way that employees can make up for a lack of holiday bonuses," said Abosch.  "In fact, if company goals are met or exceeded, many employees can expect to earn far more than what they would receive in the form of a holiday bonus."

More Companies Throw Holiday Parties this Year

Company celebrations continue to be popular during the holidays, with 70 percent of organizations planning to host a party, up from 65 percent last year.  Of these, 24 percent will spend $5,000 or less on their parties, 12 percent will pay between $5,000 and $10,000, and 27 percent will spend between $10,000 and $25,000.

According to the survey, 56 percent of companies hold holiday parties after work hours, 65 percent hold them at off-site locations and 55 percent allow employees to bring significant others.  The average attendance for holiday parties is 67 percent.

Using wellness programs to stay healthy can pay off financially.

That was the finding from Blue Cross and Blue Shield of North Carolina yesterday. According to it, patients can save nearly $200 a year in health-care costs by adopting a healthier lifestyle.

... Blue Cross’ findings show that a healthy lifestyle can put more money in people’s pockets, said Helen Darling, the president of the National Business Group on Health, an employer-advocacy group.

“The evidence speaks for itself,” Darling said. “There’s money to be saved when people get serious about their health.”

 Read the entire article here.

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) today issued an extensive fact sheet on the application of federal anti-discrimination laws to employer tests and other selection procedures to screen applicants for hire and employees for promotion. The new technical assistance document is available on the agency’s web site at www.eeoc.gov/policy/docs/factemployment_procedures.html

The fact sheet describes common types of employer administered tests and selection procedures used in the 21st century workplace, including cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks. The document also focuses on “best practices” for employers to follow when using employment tests and other screening devices, and cites recent EEOC enforcement actions. Discriminatory employment tests and selection procedures are prohibited by Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act -- which are all enforced by the EEOC.

“This fact sheet will help employers voluntarily comply with EEOC-enforced statutes, as companies seek lawful and efficient ways to screen large numbers of applicants,” said Commission Chair Naomi C. Earp. “Tests and other selection tools can be an effective means of making employment decisions, as long as they are not used to screen out individuals in a discriminatory way.”

The EEOC has observed an increase in employment testing due in part to post 9-11 security concerns and issues related to workplace violence, safety, and liability. In addition, the large-scale adoption of online job applications has motivated employers to seek efficient ways to screen big applicant pools in a non-subjective way.

Charges of job discrimination filed with the EEOC raising issues of employment testing and exclusions based on criminal background checks, credit reports, and other screening tools have trended upward from 26 in Fiscal Year 2003 to 141 in FY 2006. On May 16, 2007, the Commission held a public meeting at agency Headquarters in which expert panelists addressed legal issues related to the use of employment tests and other screening devices.

Many 401(k) retirement plans offer investors access to online or over-the-phone chats with someone who can answer investment questions, and it appears that those who don't ask for help can end up with less money in their portfolios.

A new Charles Schwab examination of the 401(k) plans it oversees found that investors who rely on some professional advice for investment decisions enjoy greater returns than those who go it alone.

The investors who used an independent investment adviser that Schwab makes available to its 401(k) participants saw an average 14.1 percent return last year. Those who didn't solicit advice, at least from the adviser Schwab provides, saw only an 11.1 percent return. A similar gap in returns occurred in 2005.

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On November 7, 2007, U.S. Citizenship and Immigration Services (USCIS) released the revised I-9 form and the updated Handbook for Employers, Instructions for Completing the Form I-9. The revised I-9 form reduces the number of documents an employer may accept for newly hired employees to verify employment eligibility pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Employers must begin using the 2007 edition of the I-9 form immediately because all previous versions of the form are no longer valid.

Click here for a free downloadable PDF of this informative alert with more information about these changes as well as other related news.

NEW 401(k) regulations that take effect next month will sharply alter the rules of the game — at least for some employees.

The Labor Department devised the regulations, seeking to bolster the retirement savings of eligible workers who don’t currently participate in their companies’ 401(k) plans. And some financial experts say the new rules may eventually lead to new investment options for many current participants.

The new regulations are complicated. But, in a nutshell, they were intended to meet two objectives. First, regulators wanted to push more Americans to invest in 401(k)’s. And, second, they wanted them to invest more of their money in stocks, which have outperformed bonds and money markets over the long term. To meet those goals, the new rules make it easier for employers to automatically enroll employees in their plans, though they aren’t required to do so. The default investment for auto-enrolled employees will include stocks, though workers who want to choose on their own will have other options.

There is plenty of evidence, both anecdotal and statistical, that workers save more for retirement when much of the decision-making is taken out of their hands.

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Tangerine, based in Boston, designs weight-loss programs that employ economic incentives. The company is modeled on recent economic research showing that paying people to lose weight causes their pounds to fall off faster. Eric Finkelstein, an economist with RTI International who has spoken with Tangerine executives, recently conducted a study in which people were paid either $7 or $14 per percentage point of body weight they lost.

After three months, people with no incentives lost about two pounds. The $7 group lost about three pounds. The $14 group: five pounds. Members of the more expensive group were also five times more likely than members of the no-money group to lose 5 percent of their body weight. One person netted $140. Were they more excited about losing weight or about the money? "I think they were most excited by the $140," Finkelstein said.

In Tangerine's programs, employees earn $3 to $7 for every percentage point of weight lost and may earn additional rewards in team contests. Aaron Day, the company's founder, has also baked in incentives for continuing to keep the weight off. "Let's say the reward is $5 for each 1 percent," Day said. "If I lost 3 percent in the first quarter, I earn $15. If I lose another 3 percent on top of that in the second quarter, then I would get $30 because now in total I have lost 6 percent."

…

An average of 140 employees at Wesley Willows participate in the program, which started eight months ago. They get $3 per percentage point of weight lost. Together, they have lost 806 pounds. Holmgaard said the company has spent $11,500 on the Tangerine program, including rewards. The company's health-care costs have tumbled more than $146,000. "Certainly paying them gets their attention," Holmgaard said.

You can read the entire article here.

To help employers improve the health of children, adolescents, and women of childbearing age, as well as potentially reduce health care costs, the National Business Group on Health recently unveiled a comprehensive publication for employers. 

It offers a maternal and child health plan benefit model, includes case studies from Marriott International and AOL and lists best practices and suggestions for cost structure and plan design. It was developed by an advisory board of business leaders and representatives from leading medical associations. 

As an employer, if you improve the health of child-bearing women, children and adolescents, you will see lower overall health care costs, increased productivity, improved retention and less turnover than employers that do not offer similar programs, says Helen Darling, president of NBGH. 

About $1 of every $5 spent on health care by large employers is used for maternal and child health care, the report estimates.

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WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced this week that a revised Employment Eligibility Verification Form (I-9) is now available for use. All employers are required to complete a Form I-9 for each employee hired in the United States.

The revision seeks to achieve full compliance with the document reduction requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which reduced the number of documents employers may accept from newly hired employees during the employment eligibility verification process. The revised Form I-9 is a further step in USCIS’ ongoing work toward reducing the number of documents used to confirm identity and work eligibility.

Key to the revision is the removal of five documents for proof of both identity and employment eligibility. They include: Certificate of U.S. Citizenship (Form N-560 or N-570); Certificate of Naturalization (Form N-550 or N-570); Alien Registration Receipt Card (Form I-151); the unexpired Reentry Permit (Form I-327); and the unexpired Refugee Travel Document (Form I-571). The forms were removed because they lack features to help deter counterfeiting, tampering, and fraud.

Additionally, the most recent version of the Employment Authorization Document (Form I-766) was added to List A of the List of Acceptable Documents on the revised form. The revised list now includes: a U.S. passport (unexpired or expired); a Permanent Resident Card (Form I-551); an unexpired foreign passport with a temporary I-551 stamp; an unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B); and an unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer.

Employers are encouraged to start using the revised Form I-9 immediately. The form will
become effective once the notice is published in the Federal Register. Both the revised form and the “Handbook for Employers, Instructions for Completing the Form I-9” are available online at www.uscis.gov.