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June 25, 2007
Attorney: Immigration Bill Would Have Significant Impact on HR
By Sean Dean

HR will be doing a lot more work if legislation that would overhaul immigration law is approved, said Mary E. Pivec, a partner at the law firm Keller and Heckman, during the Society for Human Resource Management's 59th Annual Conference and Exposition in Las Vegas.

She said that while the legislation's title, Security Through Regularized Immigration and Vibrant Economy Act of 2007 (STRIVE), may seem innocuous, it contains several provisions that will make HR's job a lot tougher.

The legislation, which is in the Senate, contains:

  • New document retention requirements. Under the legislation, an employer must copy, sign, and date (and have employee sign and date) each document presented for review and retain all documents with the I-9.
  • An extension of I-9 retention periods. The legislation would require retention of I-9 forms for the length of employment plus two years, or 7 seven years from the date of hire, whichever is longer.
  • New mandates for employers that receive no-match letters from the Social Security Administration.
  • An extension of electronic employment verification. All new hires and current employees would have to be checked through the system.
  • A new certification of compliance program. The government could send orders to certain chief executive officers to conduct an internal review and certify compliance.
  • Expanded investigation and enforcement capability.
  • Expanded fines and penalties.

Pivec also discussed laws in three other areas that will affect HR managers in the future: retaliation, union organizing, and equal employment opportunity. She highlighted recent developments in the three areas.

Pivec noted that retaliation complaints are on the rise and that they can be expensive for employers. She discussed a recent Supreme Court ruling that employers should keep in mind. In the case, the Supreme Court was asked to define what constitutes an "adverse employment action" that is prohibited against employees who complain about discrimination.

The court decided to establish a material adversity standard that questions whether the challenged action would dissuade a reasonable worker in the plaintiff's situation from making or supporting a charge of discrimination. The question of material adversity is left to the jury to decide.

In light of the decision, Pivec recommended that employers take the following steps.

  • Review discrimination and harassment policies to ensure that they prohibit retaliation and subject offenders to potential discipline and termination.
  • Provide a hotline for reporting equal employment opportunity (EEO), harassment, and retaliation complaints.
  • Invest in ongoing interactive/behavioral harassment and retaliation training for supervisors and managers.
  • Establish sound EEO investigative procedures and address retaliation complaints promptly and credibly.
  • Make EEO management performance a factor in compensation and promotion.
  • Monitor complainants' work areas for signs of retaliation and intervene promptly to correct it.
  • Audit past incidents for lessons learned.
  • Consider adopting a pre-dispute arbitration policy.

In the area of union organizing, Pivec noted the Employee Free Choice Act, which would make it easier for employees to organize by removing an employer's ability to force a secret ballot election. In addition, if illegal immigrants are granted a path to legal status, as proposed in the legislation before the Senate, they could gain more confidence to join unions.

Pivec called a recent Supreme Court EEO ruling "a very big decision" for employers. In the case, the court said the deadline for workers to file a pay discrimination complaint with the U.S. Equal Employment Opportunity Commission is 180 days from when the discriminatory pay decision was made and communicated to them. A woman who sued Goodyear argued that the statute of limitations should be 180 days from each paycheck that reflects a past discriminatory decision.

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