Wyche at Work: October Employment Update

Prepared by Ted Gentry
October 2012

Voting Leave Laws

With Election Day drawing near, you may get some questions from employees about taking off time from work to vote. South Carolina does not mandate “voting leave” for employees, though companies are free to establish policies that permit voting during the workday. Other states (Georgia and Alabama, for instance) have legislated voting leave entitlement for employees under varying circumstances. If you have questions about whether a particular jurisdiction affords employees the right to take time off from work in order to vote, please let us know.

South Carolina Responds to Cyber Attack

The S.C. Department of Revenue’s announcement last week that about 3.6 million Social Security numbers and 387,000 debit and credit card numbers were exposed in a cyber attack affects most individuals and potentially some businesses in the state, particularly limited liability companies that use social security numbers. Your company or your employees could be affected. Individuals can take action by following the instructions on the SC DOR website. The agency is looking at options for credit or identity theft protection that may be made available to businesses.

Hiring Highlights

There was guarded optimism over job growth following last month’s report from the SC Department of Employment and Workforce that South Carolina had seen the “largest over-the-month employment increases since January 2007.” Buoyed by this news, Wyche at Work is going to address different hiring issues for the next few months. This month, we will address new E-Verify requirements and caution against asking too much about an applicant’s immigration status. Be on the lookout in future months for more legal issues relating to hiring new employees.


North Carolina has joined South Carolina and other states that now require the use of E-Verify to confirm a newly hired employee’s authorization to work in the United States. The North Carolina Department of Labor’s website provides more information on the new law and the E-Verify process, including a set of Frequently Asked Questions for North Carolina employers.

As we discussed in detail in an earlier article, South Carolina’s law requiring the use of E-Verify became effective January 1, 2012 and has greater coverage than the North Carolina law. To hire new employees in South Carolina, your company should already be registered and familiar with the E-Verify process.

Even if you use E-Verify, employers should take care to avoid discriminatory or illegal practices:

  • E-Verify supplements, and does not replace, the Form I-9, and I-9 requirements and standards remain in effect.
  • Non-confirmation responses through E-Verify need to be handled properly. The United States Department of Justice recently settled a complaint against an employer for failing to provide an employee with proper E-Verify paperwork to resolve a tentative non-confirmation response and subsequently terminating her employment.
  • The Office of Special Counsel, which enforces the anti-discrimination provision of the Immigration and National Act, recently cautioned employers against requiring applicants to disclose their “citizen or immigration status” prior to extending an offer of employment. The OSC’s employer webpage provides information and publications on hiring-related topics such as Form I-9 and E-Verify, Social Security mismatch letters and steps to avoid discrimination.

Workplace Flexibility

If your company is like Wyche, you may have some employees interested in taking on-site yoga classes to improve their flexibility. The Department of Labor recently addressed a different type of workplace flexibility when it created a Worksite Flexibility Toolkit. To coincide with National Disability Employment Awareness Month, the DOL established the website to emphasize that “Workplace flexibility is a universal strategy that promotes an inclusive workforce” and “levels the playing field for people with disabilities.” This website may be a helpful resource for considering flexible work arrangements, handling work-life balance issues, negotiating the inevitable juggling faced by working families, developing strategies and policies for workplace flexibility, and accommodating disabled individuals.

News Straight from the EEOC

Wyche attorney Sarah Sloan Batson attended the NC/SC Labor & Employment Law Program last weekend where an attorney with the Equal Employment Opportunity Commission presented on agency initiatives:

  • Because budget cuts have decreased the number of lawsuits filed by the EEOC, the agency has targeted cases involving claims of systemic discrimination, using research and analysis of data on employment trends and demographic changes to which the EEOC has unique access. According to the EEOC, “[s]ystemic discrimination involves a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.”  An example of systemic discrimination includes discrimination by a national franchise or other chain business.
  • Keep in mind that the EEOC issued a recent guidance cautioning employers in the use of information that an applicant or employee has been incarcerated in order to avoid a potential disparate impact claim.
  • Finally, the EEOC representative reiterated that gender identity discrimination is on the EEOC’s radar, and that imposing gender stereotypes on a transsexual individual can constitute gender discrimination.

Thanks for the update, Sarah!

If you have any questions about these or other workplace law topics, please contact Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice. 

Picture of J. Theodore (Ted) Gentry

J. Theodore (Ted) Gentry

Ted Gentry focuses his practice on counseling colleges and universities and on appellate litigation. Ted’s career handling complex litigation gives him valuable insights into the ways that today’s decisions affect tomorrow’s disputes.

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