September 2019: Ask An HR Professional: Vanesa Lewinger
In our fifteenth installment of “Ask a Lawyer” we have had a lot of Human Resources questions recently, and we decided to create a Special Edition of Ask A Lawyer with one of our HR Professionals. Vanesa Lewinger is our top HR Professional at Law 4 Small Business and was excited to answer some of your questions.
Read it here
QUESTION: I read a lot about the ICE raids in the past several weeks. I own a farm that employs the type of people that seem to be targeted in these types of investigations. When filling out an I9, I put down the information my worker gives me. I’m not a document expert; though I will admit year over year the “legal documents” sometimes differ at times for the same people. Here is the thing; I need my workers and I prefer to hire the same ones back every season. Not just anyone can walk onto my farm and understand how the equipment works and how I like things done. At the same time the last thing I need is a wave of Border Patrol agents showing up and arresting everyone. I also do not have the ability to pay large fines, especially now when tariffs are impending my ability to sell my crop overseas. What is my responsibility when it comes to I9 documentation? And-Is there anything I can do to lessen the chances my farm will be targeted?
ANSWER: Complying with I-9 and E-Verify requirements is a hot topic at employment law conferences across the country. These days it’s nearly impossible to avoid the topic of immigration and, given the current political climate, you have every reason to be concerned about your business being targeted.
While there is no way to predict or prevent a visit from ICE, your first line of defense is avoidance. In many cases, ICE raids are prompted by the results of a previous investigation. Whether it’s a Department of Labor complaint or an I-9 audit, as an employer you could be flagged for an investigation that will expose your business to unwanted scrutiny. By staying vigilant with immigration compliance and by following standard business practices associated with all applicable employment laws, you can minimize the amount of attention your organization receives.
A big compliance piece is making sure your I-9 forms are properly completed and knowing exactly what you are responsible for as the employer. First, start by ensuring that you have an I-9 for every employee on your payroll. When reviewing documents (yes, you must physically inspect the original document), you don’t have to be a document expert but you will be held accountable if you accept a document that does not appear to belong to your employee and/or that does not reasonably appear to be genuine. Reviewing documents for each and every employee within 3 days of hire (the requirement) will ensure that you do not waste time or money training an employee that you are unable to hire and will ensure that you don’t find yourself in a situation where you want/NEED to hire someone you KNOW you cannot lawfully employ.
When rehiring employees, you don’t necessarily have to complete a new I-9. Section 3 of the I-9, Reverification and Rehires, is designed to capture updated information when an employee’s documentation of employment authorization as expired or when rehiring an employee within 3 years of the date the I-9 was originally completed. What that means you don’t necessarily need to complete a NEW I-9 each time the employee is rehired.
Finally, know your rights and prepare your workforce. There are many immigrant rights organizations that can guide you through the process and best practices. Look for a local immigration resource to build a plan that will help you protect your employees and will prepare you for a visit from ICE.
QUESTION:I own a professional services company. Our office is filled with approximately 60 well educated adults. For the most part, we have always all worked well together despite the fact that, like most businesses, we all come from varying backgrounds and experiences. However, the current political climate has created real divisiveness as of late. Most recently a couple pro- Trump supporters started chanting “build the wall” in the lunchroom. I don’t think it was meant to be offensive, more like applause for a story that was on the news in the lunchroom at the time. Since then the people who were offended by the “build the wall” chat started leaving quotes on the white board in the breakroom that firmly established some of the employee population is anti-Trump. Casual Friday has now turned into employees wearing T-shirts that clearly announce their political affiliation or ridicules those of certain political groups. I sent out an email to everyone basically asking people to be considerate of other’s views. While there has been no more chanting in the lunchroom there is a constant tug of war of the TV stations between CNN and Fox News. It is like a “thing” to try to keep a certain news station on in there throughout the day. Frankly I am exhausted and like a frustrated parent my instinct is to start eliminating the privileges such as TV in the breakroom and casual Friday that seem to exacerbate the situation. However, there are a good number of employees who are keeping their opinions to themselves and not participating in this behavior. I hate to punish them. Personally, I would be lying if I said that finding out some of my employees have political opinions and values that differ so greatly from my own isn’t troubling to me. It is. I certainly look at these folks differently than I did before. What is your advice to try to re-instate a pleasant work environment? Also, how, as a business owner, am I supposed to rectify thoughts and beliefs of employees that differ so greatly from my own; especially when some of them hold management positions in the company?
ANSWER:: Something I talk about often is the corporate culture of an organization – the internal belief and value system that helps to drive an organization’s mission and, more importantly, works as a roadmap to guide the behavior of your workforce. It’s one of the most valuable tools a company can use to mold their workforce, but it can also take on a life of its own when not properly maintained. Regardless of what is happening outside of your organization, you, as a leader, are able maintain a level of control over your work environment by building strong values, using those values to guide all employment related decisions and by leading by example.
Review your handbook policies regarding politics in the workplace. While I wouldn’t suggest a blanket “No Political Speech in the Workplace” policy, you can create a policy that focuses on disruption as a basis for discipline and/or termination. When political discussions create a situation that is distracting, employees can be held accountable. Treat the disruptive political behaviors in the same way you would treat any other disruption – nope, not today! You are paying your employees to do a job and any distraction that disrupts productivity can and should be addressed.
As for the “build the wall” mantra, that is easily perceived as unlawful harassment and is a very real threat to your organization. Make sure that you have a solid anti-harassment policy and reporting procedure in place. Use this lunchroom discourse as an opportunity to hold your annual anti-harassment training, and don’t skip over the disciplinary part. What better training tool than real life discourse? Be sure to follow-up privately with those chanting to ensure they understand the behavior is unacceptable and will not be tolerate. This would be a good time for a written warning.
It’s important to remember that our differences are just as valuable as what we have in common. While we cannot force people to change their beliefs or behaviors, we can set healthy boundaries that help to maintain positive work environments. Focus on the contributions of the employee rather than their personal beliefs and use corrective action when needed. There is no quick fix buy by highlighting negative behaviors and acting quickly while reinforcing proper behaviors will go a long way to setting the acceptable standard.
Who is Vanesa Lewinger?
Vanesa is an innovative, experienced and self-motivated Human Resources professional, adept at creating and nurturing an employee-oriented culture of professional excellence, focused on goal-attainment, and utilizing a process oriented approach to obtain win-win results. Vanesa has over ten years of progressively responsible Human Resources experience, including employee relations, payroll entry/processing, benefits administration, Human Resources Information Systems (HRIS), policies, 401k administration, and workers’ compensation administration.
In addition to Vanesa, Slingshot has an awesome team of legal professionals who can provide legal services across the United States including Larry Donahue, Donald Kochersberger, Timothy Mortimer, Alicia McConnell, Ian Alden, David Richter, Kallie Dixon, Ross Perkal, and many more. Our team is ready to answer questions that are important to you.
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