Fall 2007 Edition

IMMIGRATION LAW - "NO MATCH" LETTERS

By M. Blen Gee, Jr.

Probably the biggest gray area for employers right now in immigration law compliance is what to do if you get a "no match" letter - that is to say, the social security number does not appear to match with the employee's identity, There are two risks when you receive a no match letter: first, you risk being fined if you do not handle it correctly; and second, if you fire the employee, you risk a discrimination claim. Therefore, these letters have to be handled carefully.

Regulations that would substantially increase the burden on employers are currently "on hold" because of a federal lawsuit. As a result of the lawsuit, the Department of Homeland Security intends to revise the regulations.

If you receive a "No Match" letter from the Social Secunty Administration:

• Check your records to determine if the no match letter is the result of some clerical error;
• If there does not appear to be a clerical error, instruct your employee in writing to contact the Soclal Secunty Adrnmistration himself to try to resolve the issue. Give the employee a deadline to report back to you;
• Document your actions, including your investigation. Keep copies of your written instrucuons to your employee and follow up correspondence.
• Calendar the matter for a follow up.
• If you have not resolved the problem, contact the appropnate government authority to find out what to do next.

For new hires, consider using the Social Security Administration's E-Verify program. Information is available al the following webslte:

http://www.dhs.gov/files/programs/gc_1185221678150.shtm

For further reference, see our Spring 2007 Edition of Business Law Notes for an article on 1-9 comphance.

YOUR COMPANY'S PUBLIC RELATIONS DAMAGE CONTROL PLAN

By M. Blen Gee, Jr.

Suppose something awful has just happened concerning your company and now a reporter has called you asking for an interview. The stakes are high; your company's reputation is on the line. Your company may be facing a lawsuit or, worse, someone in your organization may be in danger of a criminal prosecution. Do you speak to the reporter? If so, what do you say? Here are some quick guidelines on how to handle this first, critical public comment:

Principle Number 1: Anything you say can and will be used against you - what they say on TV is true; anything you say can be used by your opposition at trial to hurt you. From a legal point of view, your statements are deemed "admissions" and are automatically admissible as evidence in a trial. You can expect a statement you made that in favorable to the opposition to be repeated throughout the trial. A damaging statement will be used in opening an argument, you will be cross-examined on the statement and it will be used again in closing argument. On the other hand, statements that are favorable to your position are likely to be Viewed as self-serving and will have little impact on a judge or jury.

If the damaging statement is in writing, the writing will probably come into evidence, too.

Absolute accuracy is essential! Honest mistakes can be very damaging. If a statement that you have made is erroneous, it will be used to impeach your credibility.

Principle Number 2: Anything you say can and will be taken out of context, distorted beyond recognition and then used against you - this is an unfortunate reality of life and especially litigation. A misquote is still going to be an admission which is allowed into evidence as an exception to the hearsay rule. You will have the burden of showing that you were misquoted.

So, what to do? Make only a short, positive, absolutely accurate statement, preferably prepared in advance. This is preferable to silence ("no comment"). Your silence will probably be commented on by the reporter ("he/she refused to comment" or "he/ she could not be reached for comment"). If your back is against the wall and you do not feel that you can safely make any comment, tell the reporter that you cannot comment "at this time." Ask the reporter when his/ her deadline is. You may have time to prepare an appropriate comment.

Principle Number 3: Reporters love quotes - If you make a statement, it is highly likely that a portion of it will be quoted. Use this to your advantage by giving the reporter a short, positive statement. Tell the reporter that you can give a short comment so that he/ she is prepared to take it down. Ask the reporter if he/ she is going to quote you and, if so, ask her to read the quote back to you.

lf time permits, follow up with a fax or an email with the correct spelling of your name, your title, and the name of your company. To be absolutely sure that the reporter gets your statement down correctly, you can include the text of the statement in your fax or e-mail. If you do, however, the reporter is much more likely to refer to your comment as a "prepared statement." Of course, keep copies of your fax or e-mail.

Principle Number 4: The reporter gets to choose which of your statements to use - use the KISS principal (Keep It Short and Simple). Keep your statement short; this limits the material that the reporter can select from. Do not ramble on! Do not say anything that you do not want to see in print or quoted on the evening news. Keep it short!

If the matter is one that could end up in court, you can end the conversation by stating that you do not want to comment further about a matter that may be the subject of a court proceeding.

Principle Number 5: Stay away from "off the record" comments. First unless the reporter expressly agrees beforehand, she likely will not honor your request to be "off the record." More importantly, the reporter can probably be compelled by a court to reveal your "off the record" comments.

Obviously, if there is the remotest possibility of a lawsuit or a criminal prosecution, have your attorney review the statement first.

Author's Note: North Carolina has a limited Journalist's shield law that may provide some protection for "off the record" comments. N.C. Gen. Sta.t. § 8-53.11.

FORM 1-9 HAS BEEN REVISED

By F. Stephen Glass

The U.S. Cltizenship and Immigration Service (USClS) has revised Form 1-9, Employment Eligibility Verification Form. The previous edition of the form, dated May 31, 2005, will only be accepted through Dec. 7, 2007.

The most significant change to the Form 1-9 is the reduction in the acceptable "List A" documents identified on the form. The new Form 1-9 is available on the USClS Web site www.uscis.gov. Employers are required to use the revised form (or newly hired employees, and for employment reverification when: (1) an employee's work authorization expires, or (2) an employee is rehired. USCIS has also updated Publication M-274, Handbook for Employers, Instructions for Completmg the Form 1-9, to support the release of the new Form 1-9.

RECENT BUSINESS LAW CASE SUMMARIES

By F. Stephen Glass

The Americans with Disabilities Act protects employees from discrimination based on disability. In Gambini v. Total Renal Care, Inc, the U.S. Court of Appeals (9th Circuit) precluded an employer from terminating an employee based on conduct or behavior, even though extreme, that is caused by or a part of the disability.

A 57 year-old sales manager, whose direct supervisor taunted him as "the old man on the sales force" , removed him from a profitable account because he was "too old," and told other employees he "needs to set up a younger sales force" before terminating this employee, was permitted by the U.S. Court of Appeals (7th Circuit) to proceed with his claim in the U.S. District Court. Blair v. Hyre Electric Co.

An employee who was fired for submitting a false injury report, cannot sue the employer for retaliation, according to an Iowa court. Napreljac v. Hammonds Hotels, Inc.

A national-origin discrimination case against one of the largest electronic equipment retail sellers in New York was settled for $4.3 million the same day the lawsuit was filed. The EEOC suit alleged that the employer paid Hispanics less than its non-Hispanics for the same work and failed to provide health benefits based on their National origin.

BUSINESS INSURANCE

By Jean Winborne Boyles

Often, business clients come to our office with a problem that they have been sued, or that monetary demands have been made of them. Many business risks may be covered by insurance. There is also a likelihood that insurance may cover the attorney fees. It is extremely important to work with your insurance agent to determine the potential business risks that you incur in your every-day business operation and determine if it is cost effective to insure these risks. Experienced insurance agents are usually delighted to perform a risk assessment of your business operation and recommend levels and kinds of insurance coverage. You may actually lower the costs of doing business by insuring risks which you may incur in the normal operation of your business, because you do not have to maintain sufficient reserve funds to cover these potential liabilities.

The usual business insurance policy is basically a generic policy. Your agent is able to add, with the consent of the underwriters, cenain exclusions and amendments to the policy which tailor the policy to your specific needs. For example, you need to discuss the need for directors and officers (this is D&O) liability insurance. If you have a bookkeeper who signs checks, you should consider bonding this individual. You should have your agent review your lease, if you have one for your business, to determine that as many of the risks which you have accepted in the Lease you have transferred to your business insurance. Oftentimes the business man finds out what kinds of coverage he needs after his claim has been denied by his insurance company. Use your agent and make sure that your business insurance covers the specific risks which you incur and excludes certain types of coverage which you do not need.

Business Tax Law - The IRS Grinch At Work - Taxation of Employer-Provided Cell Phones

By F. Stephen Glass

IRS - TAXATION OF EMPLOYER-PROVIDED CELL PHONES. IRS Information Letter2007-0030 says that an employer may exclude the value of an employer-provided cell phone from an employee's gross income , if the employer requires the employee to keep records that distinguish business from personal phone charges. The employer must include the value of any personal use of the cell phone in the employee's wages. Personal use includes individual personal calls, as well as a pro rata share of monthly service charges. IRC §274 (d) requires employees to keep records of each call and its business purpose to ensure that the business use may be excluded from gross income. The business use is not taxable to employees if they do not use the cell phone to make personal calls, or their personal use of the phone is minimal.

About our authors:

M. Blen Gee, Jr. is an honors graduate of the University of North Carolina School of Law. His areas of concentration include business and corporate law, including sales of businesses; business litigation, including arbitration and mediation; franchise law; automobile dealer law; and insurance company insolvency. Mr. Gee has earned the highest peer-review rating for professional excellence and ethical standards by the national publication Martindale Hubbell.

 

F. Stephen Glass is the author of numerous publications on business and business entities as well as estate planning. He is a frequent presenter for the National Business Institute. His practice is concentrated in the areas of business and corporate law, business succession planning and estate planning. He serves on the Cary board of Capital Bank. Mr. Glass has earned the highest peer-review rating for professional excellence and ethical standards by the national publication Martindale Hubbell. He serves on the American Bar Association Business Law Committee on Corporate Governance.

Jean Winborne Boyles concentrates her practice in health law, corporate law, bankruptcy and creditors’ rights, commercial leasing, antitrust and state administrative law.

DISCLAIMER: Johnson, Hearn, Vinegar, Gee & Glass, PLLC, provides this newsletter for general information only. The materials contained herein may not reflect the most current legal developments. Such material does not constitute legal advice, and no person should act or refrain from acting on the basis of any information contained In this newsletter without seeking appropriate legal or other professional advice on their particular circumstances. Johnson, Hearn, Vinegar, Gee & Glass, PLLC and all contributing authors expressly disclaim all liability to any person with respect to the contents of this newsletter, and with respect to any act or failure to act made in reliance on any material contained herein. Distribution of this newsletter does not create or constitute an attorney-client relationship between the firm and any reader or user of such information.