2016 Labor and Employment Seminar

Transcription

1 2016 Labor and Employment Seminar Identity Theft and the Employment Relationship 8:30 a.m. - 9:00 a.m. Presented by Jo Ellen Whitney Davis Brown Law Firm th St, Suite 1300 Des Moines, IA Phone: Friday, October 14, 2016

2 When Things Go Wrong: Anticipating & Responding to Employee Identity Issues Jo Ellen Whitney Davis Brown Law Firm

3 DISCLAIMER Due to limitations and the nature of this program please understand that printed material and oral presentations or other data presented are not intended to be a definitive analysis of the subjects discussed. Users are cautioned that situations involving healthcare and employment law questions are unique to each individual circumstance, and the facts of each situation will dictate a different set of considerations and varying results. Material contained on this site or listed as a reference is a general review of the issues, and must not be considered as a substitute for advice from your own attorney on your own independent situations.

4 Jo Ellen Whitney Jo Ellen is a senior shareholder at the Davis Brown Law Firm. Ms. Whitney s areas of practice include: Employment & Labor Relations Health Law Privacy & Security (HIPAA) The Davis Brown Law Firm th Street, Ste Des Moines, IA JoEllenWhitney@davisbrownlaw.com

5 Types of ID Theft Employee isn t who he/she claimed Someone else pirated your employee s ID

6 Personal Information Security Breach Protection Iowa Code 715C 715C.1 (1) Breach is any acquisition not done in good faith 715C.1 (2) Consumer is any resident of the state 715C.2 Requires notice of breach Letter Electronic if standard Public notice including statewide media

7 Mismatch Crops Up Again 2008 No Match Issues = Not legally Authorized. Employer liability due to constructive knowledge.

8 No Match Aramark Facility Services vs. Services Employees Int. Local Union employees given 3 days to resolve a no match

9 DOJ Revises No Match DOJ determines no match is not constructive knowledge Mistake Skipping debt, including child support Prior criminal record, debarrment Not legally authorized

10 Skip Ahead to 2016 & the ACA IRS Form 1095 C which includes SS# match Employer has 45 days to respond to the IRS if no match occurs must show Error corrected Reasonable cause for delay

11 Immigration and Nationality Act August 2016 proposed regulation changes Broader definition of interference DOJ Special Counsel

12 BETTY ISN T REALLY BETTY! WHAT DO I DO?

13 The Employer Has a Multi Step Process Reasonable investigation / don t assume Conversation with employee Evaluate your process (I 9, interview, etc.)

14 Are There Tax Issues? Submit IRS forms W 2c and W 3c to correct any wages reported in error to someone else s Social Security number. File amended employment tax returns such as the 941 X. Alert accounting department to ensure proper claims are filed. Advise employee that tax consequences may arise if he did not pay appropriate taxes and that the employee should seek professional advice on filing amended returns. Document this.

15 SHOULD I CALL IMMIGRATION? Employers have no duty to report unauthorized workers (or suspected unauthorized workers to either USCIS or ICE). Any individual may choose to contact the government regarding a potential law violation.

16 GENERAL REPORTING ISSUES Legal reporting (police, sheriff, DEA). Tax evasion or identity theft may be a criminal issue, but reporting is not always required. Internal reporting to administer policies. Medical identity theft patient & provider reporting.

17 WHAT IF I DISCOVER A FALSE ID AFTER I FIRED THE EMPLOYEE? Little an employer can do except file Forms W 2c and W 3C to correct the wages reported in error to Social Security. Letter to last known address (Certified/Regular)

18 THE ID IS FAKE DO I OWE THEM? 1. Yes, Lucas v. Jerusalem Café, LLC, (W.D. Mo. 2011) 2. Workers without employment authorization brought action against employer for overtime wages and minimum wage violations under the Fair Labor Standards Act ( FLSA ). The court held FLSA applies to unauthorized workers, reasoning that if the FLSA did not apply, employers would have incentive to hire such workers and pay them lower than minimum wage.

19 WHAT IF THEY GOT HURT? Yes, Staff Management v. Jimenez, 839 N.W.2d 640 (Iowa 2013). An undocumented worker is entitled to healing period benefits under the Iowa Workers Compensation Act ( IWCA ). The court reasoned 1) undocumented workers meet the definition of employees under the IWCA, 2) a contract between an employer and an undocumented worker is not void as construing an employment agreement between an undocumented worker and an employer as void would encourage employers to hire undocumented workers, and 3) federal law does not preempt healing period benefits.

20 WHAT IF THEY, LIKE DAVID COPPERFIELD, DISAPPEARED? Because classified as an employee must hold on to final payroll and benefits for same amount of time as a documented employee. If unspecified by policy, depends on state law. For Iowa, unpaid wages, including wages represented by payroll checks or other compensation that remain unclaimed by the owner for more than one year after becoming payable are presumed abandoned. Iowa Code 556.9(1). In Iowa, when property becomes abandoned, must report to the state treasurer. Iowa Code

21 Thank you Jo Ellen Whitney Davis Brown Law Firm

22 10/3/2016 When Things Go Wrong: Anticipating & Responding to Employee Identity Issues Jo Ellen Whitney Davis Brown Law Firm DISCLAIMER Due to limitations and the nature of this program please understand that printed material and oral presentations or other data presented are not intended to be a definitive analysis of the subjects discussed. Users are cautioned that situations involving healthcare and employment law questions are unique to each individual circumstance, and the facts of each situation will dictate a different set of considerations and varying results. Material contained on this site or listed as a reference is a general review of the issues, and must not be considered as a substitute for advice from your own attorney on your own independent situations. Jo Ellen Whitney Jo Ellen is a senior shareholder at the Davis Brown Law Firm. Ms. Whitney s areas of practice include: Employment & Labor Relations Health Law Privacy & Security (HIPAA) The Davis Brown Law Firm th Street, Ste Des Moines, IA JoEllenWhitney@davisbrownlaw.com 1

23 10/3/2016 Types of ID Theft Employee isn t who he/she claimed Someone else pirated your employee s ID Personal Information Security Breach Protection Iowa Code 715C 715C.1 (1) Breach is any acquisition not done in good faith 715C.1 (2) Consumer is any resident of the state 715C.2 Requires notice of breach Letter Electronic if standard Public notice including statewide media Mismatch Crops Up Again 2008 No Match Issues = Not legally Authorized. Employer liability due to constructive knowledge. 2

24 10/3/2016 No Match Aramark Facility Services vs. Services Employees Int. Local Union employees given 3 days to resolve a no match DOJ Revises No Match DOJ determines no match is not constructive knowledge Mistake Skipping debt, including child support Prior criminal record, debarrment Not legally authorized Skip Ahead to 2016 & the ACA IRS Form 1095 C which includes SS# match Employer has 45 days to respond to the IRS if no match occurs must show Error corrected Reasonable cause for delay 3

25 10/3/2016 Immigration and Nationality Act August 2016 proposed regulation changes Broader definition of interference DOJ Special Counsel BETTY ISN T REALLY BETTY! WHAT DO I DO? The Employer Has a Multi Step Process Reasonable investigation / don t assume Conversation with employee Evaluate your process (I 9, interview, etc.) 4

26 10/3/2016 Are There Tax Issues? Submit IRS forms W 2c and W 3c to correct any wages reported in error to someone else s Social Security number. File amended employment tax returns such as the 941 X. Alert accounting department to ensure proper claims are filed. Advise employee that tax consequences may arise if he did not pay appropriate taxes and that the employee should seek professional advice on filing amended returns. Document this. SHOULD I CALL IMMIGRATION? Employers have no duty to report unauthorized workers (or suspected unauthorized workers to either USCIS or ICE). Any individual may choose to contact the government regarding a potential law violation. GENERAL REPORTING ISSUES Legal reporting (police, sheriff, DEA). Tax evasion or identity theft may be a criminal issue, but reporting is not always required. Internal reporting to administer policies. Medical identity theft patient & provider reporting. 5

27 10/3/2016 WHAT IF I DISCOVER A FALSE ID AFTER I FIRED THE EMPLOYEE? Little an employer can do except file Forms W 2c and W 3C to correct the wages reported in error to Social Security. Letter to last known address (Certified/Regular) THE ID IS FAKE DO I OWE THEM? 1. Yes, Lucas v. Jerusalem Café, LLC, (W.D. Mo. 2011) 2. Workers without employment authorization brought action against employer for overtime wages and minimum wage violations under the Fair Labor Standards Act ( FLSA ). The court held FLSA applies to unauthorized workers, reasoning that if the FLSA did not apply, employers would have incentive to hire such workers and pay them lower than minimum wage. WHAT IF THEY GOT HURT? Yes, Staff Management v. Jimenez, 839 N.W.2d 640 (Iowa 2013). An undocumented worker is entitled to healing period benefits under the Iowa Workers Compensation Act ( IWCA ). The court reasoned 1) undocumented workers meet the definition of employees under the IWCA, 2) a contract between an employer and an undocumented worker is not void as construing an employment agreement between an undocumented worker and an employer as void would encourage employers to hire undocumented workers, and 3) federal law does not preempt healing period benefits. 6

28 10/3/2016 WHAT IF THEY, LIKE DAVID COPPERFIELD, DISAPPEARED? Because classified as an employee must hold on to final payroll and benefits for same amount of time as a documented employee. If unspecified by policy, depends on state law. For Iowa, unpaid wages, including wages represented by payroll checks or other compensation that remain unclaimed by the owner for more than one year after becoming payable are presumed abandoned. Iowa Code 556.9(1). In Iowa, when property becomes abandoned, must report to the state treasurer. Iowa Code Thank you Jo Ellen Whitney JoEllenWhitney@davisbrownlaw.com Davis Brown Law Firm 7