Archive for December, 2009


This post has nothing what-so-ever to do with employment law, or labor law or any other kind of law really. It has to do with the new year, and also the old ones. As I get older these milestones in the year become more, well . . . real I guess is the way to put it. And this one, as we move out of the “00s” and into the “tens” gives us, if nothing else, a chance to reflect.

What a decade. Remember how it started? Anyone remember Y2K? We were all planning for Armageddon.  Computers and anything with a computer chip in it would stop working. Civilization as we knew it was going to end. No cars, no toasters, no nothing. Y2K loomed, and then midnight came and went and somehow civilization continued on. Good thing too, because I can’t live without my toaster.

But silly superstition would not, unfortunately, define the decade. We had a disputed presidential election.  Remember that? Our system of selecting a leader was tested as it had never been tested before. No sooner had we gotten through that and along came 9/11 and 19 criminals thought that they could bring us down by committing murder on an unprecedented scale. And it hurt. We went to war and as we have so many times in our history we asked young men and now young women to stand and fight for us, and yes, to die.

And if we hadn’t suffered enough by human hands, nature reminded us how fragile we can be with Katrina. A storm so bad that it very nearly erased an entire American city from the map.

We saw economic crisis and political scandals. We saw tragedy and suffering. And it sometimes seemed like it would never end. What a decade.

Despite all of these lows, we did what we always do; we bounced back and in doing so we reached heights none of us thought possible. The people selected one man and the electoral college selected another and the next day we all got up and went about our business, no tanks on street corners, and no troops quelling riots. Like the outcome or not, as it had for over 200 years, power was transferred to a new leader without bloodshed. Sometimes we forget how rare that can be in this world. We saw the American spirit reemerge when we needed it most. Criminals attacked us and tried to bring us down, but it didn’t work.  It didn’t bring us down.  Instead, we heard stories of men and women overcoming fear and showing amazing bravery. We saw police officers and firefighters running toward the danger instead of away from it. Of simple citizens fighting back over a field in Pennsylvania. Remember the images of flags flying in front of houses the next day? Remember the President striding purposefully out to the pitcher’s mound to throw out the first pitch in Yankee Stadium, mere miles from one of the attacks? Remember the lines at recruiting offices, the lines of young men and women volunteering to serve their country? Katrina hit, and despite all of the failures, we saw people coming to the aid of those in need.  People opening their homes, donating their time and resources, helping however they could.  New Orleans is not all the way back, of that there is no doubt, but it is on the way. And it is on the way because people, not the government, every-day people were willing to help.

And the “00s” had some other things to be proud of too. Things not born of a crisis. Foremost among them I think, no matter your politics, in a country that was, and in many ways still is, dominated by middle aged white men, we elected a black man President of the United States.  We still have a long way to go, but Martin Luther King would, I hope, be proud.

As the decade ends, we are in the middle of another crisis, this time a financial crisis that has brought down corporate giants and shaken our trust in many of the institutions of our society. A crisis that has many of us believing that greed is the order of the day. Many of our friends are without work and there seems to be no end in sight. And yes, we are still at war and young men and women are still dying.

But it is a new year and a new decade. And as we move into the “10s” we should take comfort in one thing.  That this country, and the people that live in it, will find a way to bounce back. And what is going to do it for us is what always has: our creativity, our ability to find a solution where none seemingly exists; our civility, some of you call it “the golden rule”, that despite our sometimes crass exteriors runs through all of us at heart and make us want to help; and our optimism, the realization that no matter how bad it gets, we are blessed to live in a country that allows us, if we work at it, to rise to the top.

Happy New Year, everyone!

Homeland Security Stepping Up I-9 Enforcement in 2009 – 2010

We have a guest blogger today.  Kathy Hanenburg.

Kathy is a partner at WNJ who specializes in business immigration, representing clients who hire non-U.S. workers for highly skilled and technical positions, as well as businesses needing to transfer executive and managerial personnel from abroad to the United States. She also counsels human resource professionals on immigration and I-9 compliance issues. Kathy is the Chair of the Firm’s Immigration Law Practice Group.

On November 19, U.S. Customs and Immigration Enforcement (“ICE”) announced that it had served an additional 1,000 audit notices on businesses across the U.S., intended to find and penalize employers who hire undocumented workers.  These audits are in addition to the 650 audits already initiated in fiscal 2009.

The initial audits targeted specific industries, such as manufacturing, agriculture, landscaping and construction.  ICE has indicated that the second round of audits resulted from “investigative leads and intelligence” (i.e., “tips”)  as well as a business’s ties to public safety and national security.

ICE noted that since its new work-site enforcement strategy was implemented on April 30, 2009, it had issued Notices of Intent to Fine totaling more than $15 million, compared with only $2.3 million in all of fiscal 2008.

Fines for hiring or continuing to employ unauthorized workers fall into three tiers, depending on whether the employer is a “first-time violator”, “second-time violator” or “third or subsequent time violator”.  The current fines for each illegal hiring  are:  First Tier-$375 – 3,200; Second Tier-$3,200 – 6,500; Third Tier-$4,300 – 16,000.

The actual amount of fines assessed will depend on a number of factors, including what percentage of the employer’s work force is determined to be undocumented and the size of the business.


What is he doing?! Why is he writing about sexual harassment, again? Haven’t we beat this mule to death over the years? Come on, there can’t be anything new about sexual harassment, can there? Nobody does this stuff anymore. We all know better.

Oh, if that were only true. TRUTH: Nothing is new in sexual harassment law. FALSE:  Nobody does this stuff anymore. I was flipping through the EEOC’s website this morning to see what is going on. The EEOC website has something new the EEOC calls the “Newsroom.” It is a page on which the EEOC tells us all about all the lawsuits they are filing and all the settlements they have “won.” The current edition of the page lists 20 entries of things going on at the EEOC. Nine of those entries (if my math is correct that’s 45%) involve either sexual harassment suits the EEOC has filed or settlements of sexual harassment suits the EEOC has “won.” So much for learning our lesson.

The most recent entry, dated 11/27/09 tells the tale of a suit filed against a Dunkin Donuts in N.Y. The suit alleges that the manager of this particular Dunkin Donuts “grabbed female employees’ buttocks and breasts, kissed them on the neck, and hugged them against their will.  He told them they were “hot” and told them he preferred virgins. He asked about their sex lives and described in explicit detail the sexual acts he wanted to perform on them, the EEOC said. He warned them not to tell anyone about what he said to them.” Are you kidding me?! The article indicated that some of the women subjected to this behavior were “teenagers”.  Now don’t forget, these are just allegations, not facts, but WOW. Really?!

How can this happen (if it really did happen)? Surely this company has a policy against sexual harassment. Of course they do, or at least I would assume they do. But what happens is we write the policies and put them in the handbook and then we sort of forget them. Can’t do that. You have to train your managers and supervisors. And then you have to train them again. And you have to have them trained by someone who knows what they are talking about. Yes, I know that doing harassment training is a pain and repeating it every year or every other year is even more of a pain. Managers and supervisors are busy and don’t want to attend. It costs money and takes time. Let’s go back to the EEOC website for a second and see how really expensive it is.  Let’s see now:  “Jury Awards $105,000 . . .”;  “. . . to pay $175,000 for Sex Harassment of Man by Female Co-Worker.”; “. . . to pay $200,000 for Sex Discrimination . . .”;  “. . . will pay $255,000 to Settle EEOC sexual harassment lawsuit involving teens.”

A few bucks for some really good training doesn’t seem quite so expensive now does it?  You can see the EEOC website at