Nolo’s Employment Law Blog

With gas prices hovering around $4 per gallon, a survey by placement firm Challenger, Gray & Christmas reveals that 57% of polled employers are offering alternatives to help employees cope, according to CNN. Strategies include a compressed work week -- four 10-hour days (23%) -- employee carpools (20%), subsidizing the cost of public transportation (18%), and allowing employees to telecommute at least one day a week (14%).

Personally, I'm surprised telecommuting is so far down the list. All the other options are good ones, but telecommuting has some distinct advantages for employers as well as employees. (Full disclosure: I'm writing this from home, as a telecommuting employee.) Here are just a few of the benefits:

• Recruiting and retaining the best employees. According to the survey, 34% of employers have had a qualified candidate turn down a job because of a long commute, while 40% of jobs could be done telecommuting. Allowing employees to telecommute is an attractive job benefit that will help you attract the best candidates, even if far away. Another study shows telecommuting employees are more satisfied with their jobs, and less likely to leave.


• Decreased costs. Telecommuting may decrease your costs -- for example, if it allows employees to share work space and office equipment.


• Increased efficiency. Employees working at home are free of the distractions of a ringing phone, interruptions by co-workers, and the like. Particularly if working on focused projects, this allows employees to work more efficiently.


• Positive environmental impact. One 2005 study found Americans drive an average of 16 miles each way to work. In addition to reducing commuting times and costs, allowing telecommuting has a positive environmental impact as fewer workers drive to the office.

As we previously posted here, there's a lawsuit underway in San Francisco, challenging the Department of Homeland Security's new regulations telling employers how to handle "no-match" letters. A coalition of labor, immigrants' rights, and business groups filed the lawsuit, asking the court to stop the new regulations from going into effect. And that's exactly what the court did on October 10, 2007, for at least the next few months.

The court issued a preliminary injunction: a court order that prevents the rules from going into effect while the lawsuit is pending. The court's decision found that serious questions had been raised as to whether the government followed required procedures, such as analyzing the effect the new regulations would have on small businesses. Because of these questions, and because allowing the regulations to go into effect would cause significant harm to both employers and employees, the judge put them on hold.

What happens next? The lawsuit continues, and the Social Security Administration finds a place to store the 141,000 no-match letters it planned to mail out. And here's an interesting twist: Judge Charles Breyer issued this decision. If that name sounds familiar, it's because his brother -- Justice Stephen Breyer -- sits on the U.S. Supreme Court, which could well decide this issue once and for all.

Lisa Guerin

UPDATE: In December 2007, there were a couple of new developments in this case. First, the Department of Homeland Security filed an appeal, asking the Ninth Circuit Court of Appeals to lift the temporary injunction and allow the new rules to go into effect. And second, Judge Breyer (the district court judge) agreed to put off his decision on whether to issue a permanent injunction until March of 2008, to give the government a chance to address the concerns that led Judge Breyer to issue the preliminary injunction.

And, if you want to find out more about the most important federal employment laws on the books, be sure to pick up a copy of my & Attorney Amy DelPo’s book, The Essential Guide to Federal Employment Laws.

To what length will your company go to recruit top talent? Some companies, it seems, are willing to enter a whole new world—a virtual one, that is. A recent article reveals that some organizations are using Second Life, an online “3-D virtual world,” to recruit and interview applicants. Interviewers and interviewees choose avatars (“your persona in the virtual world”) and arrange meetings that require them to master virtual world skills like climbing stairs, shaking hands, and even getting dressed.

Maybe I’m old-fashioned, but I’m not ready for a virtual world to take the place of the real one. If your company is thinking about jumping on the Second Life bandwagon, consider a few important factors.

First, not everyone will want or be able to use Second Life—for example, applicants with visual or other physical disabilities, or even older applicants who may be less likely to join Second Life (the average age of a Second Life “resident” is 30). For legal and practical purposes, you’ll want to make sure applicants have access to other recruiting and interviewing methods.

Second, consider how long it takes to learn to use Second Life. A successful applicant said it took him about a day and a half to learn the basics (like not walking into virtual walls)—and of course, you and every other interviewer will have to learn those skills too. Unless it’s something you expect to do often, it may not be practical.

Third, are the skills the candidate needs to navigate in Second Life relevant to the position? If you’re hiring for a high-tech position, perhaps. Otherwise, you may not find the best candidates this way—it’s hard to see a lot of accounting professionals or equipment operators using Second Life, for example. And it’s never wise to make employment decisions based on skills unrelated to the job—like keeping your avatar virtually seated.

Finally, don’t undervalue a face-to-face meeting. Yes, communicating through avatars may put a candidate at ease and limits (but doesn’t eliminate) your ability to distinguish between applicants based on legally-protected classes like race or age. But often, you’ll want to see how a candidate reacts to stressful situations—like a job interview. For many positions, you’ll want to make sure the applicant presents well and has good people skills, both almost impossible to judge online. Also, the virtual interviewee doesn’t get the benefit of seeing the work environment or getting a feel for the company culture. The best practice, if you interview in the virtual world, is to follow up with an in-person meeting—between actual, carbon-based life forms—to make sure the candidate meets your needs.

To learn more about the basics of hiring an employee, Attorney Fred S. Steingold's The Employer's Legal Handbook is a good place to start.

Alayna Schroeder

Employers have long been confused about what, exactly, they are supposed to do when they receive a “no-match” letter: a letter from the Social Security Administration stating that the Social Security number reported for an employee (usually on IRS Form W-2) does not match the government’s records. Although a no-match letter might mean that the employee’s work authorization documents – which the employee must present as part of the I-9 process -- are inaccurate or even falsified, it could be issued for other reasons too, such as typos or errors in the government database. What’s more, employers are told that they must accept documents that “reasonably appear to be genuine”; asking for more or different documentation could be illegal discrimination on the basis of national origin or citizenship status.

The Department of Homeland Security (DHS) issued new regulations to explain what employers should do if they receive a no-match letter. Although employers aren’t legally required to follow these rules, those who do can take advantage of a safe harbor provision, which protects them from legal liability if an employee turns out not to have proper work authorization. These rules were scheduled to go into effect on September 14, 2007, but they didn’t. A federal judge in San Francisco issued a temporary restraining order prohibiting DHS from enforcing the rules and even from sending out packets to employers explaining what will be required. The judge found that the plaintiffs who filed the lawsuit challenging the rules – including the AFL-CIO and the ACLU – had raised serious questions as to whether the new rules are legal or exceed the authority of the DHS and the Social Security Administration.

On October 1, the court will hear arguments as to whether it should issue a preliminary injunction, extending the prohibition on enforcing the rule. The plaintiffs have filed their papers, as has the DHS; now it’s up to the judge to decide what will happen next.

And if you want to find out more about the most important federal employment laws on the books, be sure to pick up a copy of my & Attorney Amy DelPo's book, The Essential Guide to Federal Employment Laws.

Lisa Guerin