Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

When a new employee starts, there's normally enough paperwork to fill a room.  One of those forms is the I-9 form issued by the United States Citizenship and Immigration Services (USCIS), formerly INS.  What does the I-9 form check? It checks the new hire's employment eligibility -- in other words, is the person legally allowed to work in the United States. 

Late last week, USCIS updated the form, which applies to both Connecticut and national employers, for the first time in a while.  In addition, it updated the companion handbook for employers, which includes instructions on how to complete the form.  You can download the form here.  The documents are also available on the USCIS's website and additional information is available for employers here. 

When do employers need to use this new form?

USCIS urges employers to begin using these new forms immediately; however, USCIS has also indicated that employers can use the old form I-9 until December 7, 2007.  Certainly, it appears that employers should considering using the new form as soon as possible, and no later than December 7, 2007. 

What changes does the form make?  There are several, but here are a few noteworthy ones as noted by the Pennsylvania Employment Law Blog. 

• Five documents have been removed from List A of the List of Acceptable Documents:
  • Certificate of U.S. Citizenship (Form N-560 or N-561)
  • Certificate of Naturalization (Form N-550 or N-570)
  • Alien Registration Receipt Card (I-151)
  • Unexpired Reentry Permit (Form I-327)
  • Unexpired Refugee Travel Document (Form I-571)
• One document was added to List A of the List of Acceptable Documents:
  • Unexpired Employment Authorization Document (I-766)
• Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify.
• Employers may now sign and retain Forms I-9 electronically.

The changes to this form may not be the most exciting development in employment law, but considering that every new hire must fill one out, it is important for employers to understand them. Even more important, employer should start using this new form and make sure that the form is filled out correctly.

(H.T. Ohio Employer's Law Blog)

UPDATE: The new forms go into effect December 26, 2007.

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George Lenard, who runs the popular "Employment Blawg", has an interesting post this week about how current job seekers will have to undergo different scrutiny than perhaps the last time that they engaged in a job search.  As George notes, the biggest change is the prevalent use of background checks by employers.  George provides some useful tips to job seekers about what this means during the interview process.

For employers, some (but by no means all) will use these checks without a clear understanding of the laws that may be implicated. Indeed, some employers who do hiring infrequently, may not be aware of the extent of the development of this area of law.  This post will discuss one aspect of such compliance -- the Federal Fair Credit Reporting Act.   

As its core and very broadly, the FCRA imposes three general requirements on a company that seeks to obtain and use a background check (known as a "consumer report") for employment purposes: 

(1) the company procuring the report must make certain disclosures to, and obtain authorization from, the job applicant;
(2) the company must make certain representations to the consumer reporting agency from which the report is procured; and, 
(3) the company that uses that report for employment purposes must make certain disclosures to the applicant both before and after taking any adverse action against the applicant based on the report.

The first and third obligations require a bit more explanation.  What is meant by the first requirement? Typically, a clear and conspicuous disclosure-- in a stand-alone document -- in writing to the applicant that the report may be obtained for employment purposes, and then, written authorization from that applicant.

Regarding the third set of requirements, before not hiring the employee based, in whole or in part, on information in  that report, the company must provide a copy of that report and a description of the applicant's rights.  After taking an adverse action (i.e., not hiring the applicant), the company must provide further notice of the adverse action in a format that discloses, among other items, the name, address and phone number of the company that provided the background check. 

Of course, there are other state requirements that may apply, in addition, to other rules under FCRA itself.  For example, there are additional requirements for the use of "investigative consumer reports" and there are exceptions to the above rules (such as when criminal activity is suspected) that may apply. 

But for employers using background checks, alarm bells should go off when doing so.  In today's age when doing a background check appears as simple as typing in some names or social security numbers into a computer database, nothing is that simple about these checks.   If employers are not following the rules, they risk substantial liability in the future for breaking them.  The Federal Trade Commission, the government agency responsible for oversight of this law, has a good primer on the subject for employers as well. 

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"You're hired. No wait, you're fired."

That's essentially what happened in the case of Petitte v. DSL.net, a decision recently handed down by the Connecticut Appellate Court.  The Appeals Court rejected Mr. Petitte's claims that the company should be estopped from firing him.

The background is fairly straight-forward:

• Mr. Petitte applied for a position as regional sales manager. The Company offered him a position, including an offer letter, after which he resigned from his then-current job. 
  
• Upon his first day of work, however, his supervisor told him to go home. 
  
• Later that day, the Company informed him that it had changed it mind about hiring him, as a result of information they received while checking his references.
  
• Shortly after that, Mr. Petitte filed suit alleging breach of contract, negligent misrepresentation and infliction of emotional distress.
  
• DSL.net argued that because Mr. Petitte was an at-will employee, it could terminate him at any time for any reason -- even if it occurred before his start date.
• The trial court concluded that DSL.net was correct and dismissed Petitte's claims.
  

The Appellate Court held that logic dictates that there is no distinction between the offer of employment and the actual act of employment when the employment relationship is at will. Because of this, the employment-at-will doctrine applies to the entire employment situation, including offers of at-will employment. The court noted that prospective employees should now be on notice of the risks they face when resigning from an existing job to accept employment elsewhere.

For employers in Connecticut, it's a common sense decision.  But this case shows that even if you are in the "right" at the end, it may be a costly fight to fight.  In addition, offer letters should always note that the offers are contingent upon background checks.  This will ensure that employers have an additional argument if, in the unlikely event, the offer has to be withdrawn.

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