NEWS

As COVID-19 makes its way around the world, we wanted to share how Nationwide Screening Services is preparing. Our top priority is, and always will be, the health and safety of our coworkers, clients, and partners.

To prepare for the eventuality that the situation worsens over time, NSS will be exercising our business continuity plans by observing a “work from home” for all staff. We envision this to be “business as usual” and do not anticipate any significant disruptions but wanted you to be aware. There may be delays fulfilling requests with courts, educational institutions and employers impacted by Coronavirus-related closures but we will continue to work diligently to complete your requests in the quickest time possible.

Our system will remain online and available for placing new orders. All of us here at NSS are grateful for your continued support, look forward to continuing to serve you and your business, and most importantly, send our sincere wishes for health, safety, and peace of mind.

All our best,

The NSS Team

Maine House Overrides Governors’ Veto to Make Marijuana Law More Employer Friendly

On May 2, 2018, the Maine House and Senate voted overwhelmingly to override Governor Paul LePage’s veto and passed LD 1719, which establishes rules for licensing and regulating marijuana producers, processors, retail establishments, and more. “An Act to Implement a Regulatory Structure for Adult Use Marijuana” provides additional clarity to the rules related to marijuana and the workplace in the state.

In part, the new law states in section §112. Employment policies

Except as otherwise provided in the Maine Medical Use of Marijuana Act, an employer:

Marijuana in the workplace. Is not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or cultivation of marijuana or marijuana products in the workplace;
Workplace policies regarding marijuana use. May enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace
or while otherwise engaged in activities within the course and scope of employment; and

Discipline of employees. May discipline employees who are under the influence of marijuana in the workplace or while otherwise engaged in activities within the course and scope of employment in accordance with the employer’s workplace policies regarding the use of marijuana and marijuana products by employees.
The Maine Department of Administrative and Financial Services, responsible for the administration of this law, is directed to consult with the Department of Labor “prior to the adoption of any rules concerning workplace, employment or other labor matters involved in the regulation of adult use marijuana and adult use marijuana products.”

The previous version of the personal marijuana use implementation law contained an anti-discrimination provision that stated that employers “may not refuse to . . . employ . . . or otherwise, penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the . . . employer’s . . . property. While it is not clear that this issue has been fully addressed the new version of the law clearly states, “May enact and enforce workplace policies restricting the use of marijuana and marijuana products by employees in the workplace or while otherwise engaged in activities within the course and scope of employment.” With the wording ‘in the workplace’ it would appear that the ‘while working’ aspect has been addressed, however, what employers are allowed to do with an employee who comes to work under the influence of marijuana used outside of the workplace still potentially remains and open question.

Although the latest legislative action is an attempt to correct the governor’s veto, what remains to be seen is how this law will be interpreted. While it seems that §112 of the new enabling law opens the door to employer drug testing programs and discipline for violation of those policies, you will note that employer actions are limited to conduct within the workplace. This new law doesn’t prohibit discipline for an employee’s use of marijuana “outside the employer’s property.”

Further clouding the issue is the reality that Maine is the only state (at this moment) authorizing the medical and personal use of marijuana and with a very detailed mandatory workplace drug testing law.

I guess we will just have to wait and let the lawyers sort this one out.

To read the full act go to – An Act to Amend the Marijuana Legislation Act

GUNS IN THE WORKPLACE: A PRESSING PROBLEM FOR AMERICAN COMPANIES

The National Threat Assessment Center reported that between January and December 2017 incidents of mass attacks, during which three or more persons were harmed, were carried out in public places within the United States. These acts violated the safety of the places [where people] work, learn, shop, relax and otherwise conduct their lives.1

For those incidents that occurred in a workplace, it is no question it was a tragedy for the victims and their families, however, in the vast majority of the situations its also likely was the beginning of a nightmare scenario for the employer involved.

The ensuing law suit will allege that the employer was grossly negligent because the shootings were reasonably foreseeable based on the shooter’s history of misconduct and his known propensity for violence. In support of the claim, the family’s attorney will argue that the company:

should have known the shooter would likely or was capable of harming people;
negligently failed to take appropriate security precautions and allowed the employee to return to the premises
negligently retained the shooter for years
negligently did not have a workplace violence program in place to protect employees.
Further complicating the issue is that some 22 states have passed laws that limit property owners’ ability to ban firearms in vehicles in parking areas, according to the Law Center to Prevent Gun Violence, a San Francisco-based gun-control advocacy group.

Putting politics aside, easy and immediate access to firearms in the company parking lot presents challenges for employers and their duty to provide ‘‘a safe and healthy work environment.’’ in addition, easy and immediate access raises concerns about the potential for employee violence by an employee with a ‘short fuse’ as an emotional response without a ‘cooling off’ period that would naturally occur if the employee had to go home or go purchase a gun.

To minimize the above referenced legal risk regarding negligence, vicarious liability and to promote a safe work environment, employers often implement workplace violence policies that include a ban on weapons at the workplace where they are legally allowed to do so. Negligence occurs when an employer does not take reasonable actions to address or prevent violence that was foreseeable or that they should have known may occur. Vicarious liability happens when an employer can be vicariously held liable for wrongful acts committed by an employee in the course and scope of their employment.

While, there is no federal law that regulates weapons at private workplaces, beginning with Oklahoma, several states have enacted so-called guns-at-work laws. These laws, which are typically designed to protect employees’ rights to possess concealed firearms, vary in terms of their restrictions.

The following is a general overview of ‘Guns at Work’ or ‘Guns in the Parking Lot’ laws as they are sometimes referred to: 2

Protect employees’ rights to store firearms in their private vehicles even when parked in the employer’s parking lot.
Limit an employer’s ability to search vehicles on its property.
Prohibit discrimination against gun owners.
Permit employers to prohibit weapons at work if they post a required notice.
Subject an employer to fines for failure to comply with the law’s restrictions or requirements.
Provide protection to employers that comply, including immunity from injuries arising out of compliance.
Specify that employers can allow weapons at the workplace without violating the OSH Act general duty clause which states that a company is required provide a safe work environment from know work hazards, e.g., workplace violence.
The challenge for employers is that on the one hand, without immunity, complying with a law that allows employees to bring concealed firearms to the employer’s property can increase legal risk or if the laws are not complied with their company may face civil or criminal penalties in some states. The lack of consistency and hodgepodge of requirements in state laws also makes for a complex situation for employers to manage.

So what is an employer to do?

Barry Nixon, Executive Director, National Institute for Prevention of Workplace Violence, Inc, offers the following advice. The current reality in today’s world is that the possibility of workplace violence or an active shooter situation occurring in your workplace should be recognized as a real potential issue. Consequently, employers should have a plan for preventing and/or addressing an incident if one should occur. The following are some of the items that should be included In your plan:

Establish a workplace violence prevention plan that includes a specific component that addresses active assailant (shooter) situations.
Establish either a separate policy or incorporate into your workplace violence policy a section that addresses ‘Weapons in the Workplace.’ We recommend a separate policy.
This section or policy should prohibit employees from bringing firearms and other identified weapons on to your property or premises; in jurisdictions that have ‘Guns in the Parking Lot’ laws the policy should specifically limit employees rights to bring a weapon on to company property to the parking lot where the weapon must be stored in locked vehicle and out of sight. In other words, it should be clearly stated that these laws do not allow an employee to bring their weapon into your building or workplace.
In addition, in jurisdictions that permit guns in the parking lot, employers should consider security implementing measures that control access to employer parking lots where firearms can be stored. Having trained security personnel monitoring such areas can limit the likelihood an enraged employee can access his firearm and return to the workplace to cause harm without notice.
If not otherwise prohibited by state or local law, designate a separate, gated and secure area in the company parking lot for employees transporting guns in their cars. Further security for this area might include surveillance cameras and dedicated security personnel to control and monitor access to and from the ‘‘gun lot.’’ The policy should clearly state that possession of a firearm outside of the specific parking area is strictly prohibited, and failure or refusal to adhere to this policy may result in disciplinary action up to and including termination.3

Finally, except that ‘Murphy’s Law’ is alive and well and despite your best efforts something can go wrong, make sure you develop a crisis management plan to address an incident should one occur.
Active shooter incidents continue to haunt the American workplace and no employer should deny the real possibility of an incident occurring at their workplace. As Nashua Police Office Dan. David Elliott, put it, “Hope is not a course of action,” in preparing for how to deal with an active shooter incident.” Accordingly, employers should do their absolute best to prevent harm from coming to their employees by implementing a well-developed workplace violence prevention policy and plan that addresses active assailant (shooter) situations despite the complicating factors in ‘Guns in the Parking Lot’ laws

I.C.E. to Significantly Increase Worksite Investigations

Not many employers read the “tea leaves” and foresaw what was coming when President Trump signed Executive Order 13788, entitled “Buy American and Hire American,” a broad directive which calls for the rigorous enforcement and administration of existing laws to protect the interests of US workers.

This put in motion a renewed and intensified focus on issues related to the I-9 form which is used to verify workers’ right to legally work in the United States. The Immigration and Customs Enforcement (ICE) Acting Director Thomas Homan forewarned employers about what was to come in late 2017 when he spoke about ICE’s mission and stated that worksite enforcement is an important component of ICE’s overall strategy and pledged to increase the time spent by his agency on worksite audits by “four or five times.”

Just in case you think this is political rhetoric and it will blow over consider the following:

In October 2017, Asplundh Tree Experts, Co., one of the largest privately-held companies in the United States, headquartered in Willow Grove, Pennsylvania, (“Asplundh”), pleaded guilty to unlawfully employing aliens, in connection with a scheme in which the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States. Asplundh agreed to pay the $95 million dollar recovery fee, including $80 million dollars criminal forfeiture money judgment and $15 million dollars in civil payment. This represents the largest payment ever levied in an immigration case

In November 2017, Cloverhill, a subsidiary of Aryzta AG, Zurich, Switzerland, a maker of baked goods for fast-food chains and supermarkets said it’s struggling to run a Chicago bakery after it lost a third of its workers in a clampdown on 800 immigrants without sufficient documentation. The company reported that the Cloverhill issue has led to a 7 percent decline in their North American sales in the three months through October. This raid is one of the biggest U.S. employment headaches reported by a European company so far.
In January 2018, U.S. immigration agents descended on dozens of 7-Eleven stores and targeted about 100 stores nationwide to open employment audits and interview workers in what officials described as the largest operation against an employer under Donald Trump’s presidency.
Consider the impact that an ICE investigation could have. ICE can assess a monetary penalty for each I-9 that has one or more substantive or uncorrected technical violations using a sliding scale often known as the “matrix.” The exact fine will depend upon your overall error percentage as well as other subjective factors including the size of your business, good faith, and seriousness of the violations (to name a few). Employers with 50% or more errors will be fined at the highest amount – typically $935 per I-9. This does not include cost associated with the amount of time it takes to complete an I-9 audit and conduct overall program management.

In his article, ‘ICE Announces Up to Five-Fold Increase in Form i-9 worksite Inspections,’ John Fay, Immigration attorney, shared some proven strategies that employers can initiate right away to address the risks of an ICE worksite audit.1

(1) Compliance Awareness

Your first strategy is to emphasize the importance of the I-9 form and the process to your hiring managers and top management. Employers are charged with the responsibility to make sure they hire a legal workforce by completing the I-9 form in a timely and correct fashion.

(2) Conduct a Self-Audit

You should strongly consider working with experienced immigration counsel who can guide you in developing a remediation plan and ensures you follow all of the various rules for correcting past compliance mistakes.

(3) Create an I-9 Policy Document

Your policy should document how I-9s forms will be completed and reviewed for accuracy. Having standard operating procedures not only shows good faith, it also serves as a training document.

A good I-9 policy document will include the following essential details:

How (and when) will section 1 be completed by the new hire?
Who is responsible for verifying identity and employment eligibility documents and completing section 2?
Do we make/retain copies of supporting documents for all new hires, or only as required by E-Verify?
What is the I-9 process for rehires (complete section 3 when allowable or always prepare a new I-9?)
How do we handle remote hires?
How do we document name changes?
Who is responsible for managing reverifications (when required)?
Also the policy should include information on the following:

NOTICE PREPARATION
Employers should document the specific steps that will be taken when a Notice of Inspection is received including required notifications that may be required.

In addition, HR staff should also be aware of any “post-audit” notice requirements.

REVERIFICATION TRAINING
To minimize the risk of an improper reverification, employers should take the following action:

Make sure you clearly define who should be subject to reverification

Implement a reminder system to alert you of upcoming expirations which are occurring 90 to 120 days in the future so that you can properly inform your employees and give them time to provide you with updated documentation

Decide who will be responsible for actually performing the reverification and reviewing the original documents

(4) Use an Electronic I-9 System to Ensure Compliance Moving Forward

Maintaining I-9 compliance across your organization can be a moving target, given frequently changing compliance rules and the practical realities of employee turnover.2 In addition, the prospect of mandatory E-Verify may soon become a reality with the Legal Workforce Act, H.R. 3711, having been reintroduced by Rep. Lamar Smith. The bill would require all employers to use e-verify within two years.

Fausta Albi, immigration attorney for Larrabee Albi and Coker, LLP.generally advises clients to train employees at the front desk or receptionist area on how to handle audit requests.” Note that audit can be a particularly stressful occasion, and staff members may understandably want to be as accommodating as possible, however, under the new California law, employers can actually be penalized for being too helpful during the audit process

One more issue to make sure you advise your clients not to do is to become overly zealous and to decide to simply recertify all their employees just to be sure everyone has a correct I-9 and is legally employed. Sounds like a reasonable strategy, but in reality, will not only go afoul of some state laws it could get you into trouble with federal law as well.

Federal law prohibits improper reverification of current employees with so-called “unfair documentary practices” under the antidiscrimination provisions of the Immigration and Nationality Act. As an example, California’s Senate Bill 1001, in essence made unfair documentary practices a “fineable” offense under state law.

The ‘hand writing is on the wall,’ now is a critical time for employers to prepare for the emerging aggressiveness of ICE to avoid the consequences of these types of investigations which can result in the loss of workers, damage to company reputation and image, affect relationships with customers and the public in general.