Client Alert: Social Security "No-Match" Letters Are Back

The Social Security Administration (SSA) has resumed sending no-match letters to employers if an employee's name and/or social security number does not match the SSA records. For years, the SSA sent no-match letters (referred to by the SSA as "Decentralized Correspondence" or "DECOR" notices) to employers. The SSA stopped sending the no-match letters a few years ago after litigation was filed challenging a controversial proposed rule issued by the U.S. Department of Homeland Security relating to no-match letters. The proposed rule was eventually rescinded and the resumption of SSA no-match letters became effective as of March 22, 2011.

Unfortunately, the resumption of no-match letters creates questions for employers regarding how to respond to the letters. No-match letters normally provide that the employer does not have to respond to the letter. However, employers should not ignore the letters. Doing so may have serious repercussions.

The SSA has stated that a no-match letter is not a basis, in and of itself, for an employer to take any adverse action against an employee, such as laying off, suspending, firing or discriminating against an individual. In fact, there are a number of reasons why information reported to the SSA may not correspond with SSA records including, but not limited to, typographical errors, incomplete employer records, unreported name changes or even an error in the SSA records. Therefore, employers should not jump to conclusions about the reasons behind a letter.

Employers should develop a company-wide policy for uniformly handling all no-match letters and carefully follow the instructions set forth in the letters. The policy should ensure that all no-match letters are received, and/or forwarded to, one department for processing. According to the SSA, employers should take reasonable steps to resolve the mismatch and apply those reasonable steps uniformly to all employees.

Each case a business or individual may face is unique and may require legal advice. If you have questions about developing or updating your procedures for addressing "no-match" issues, or would like additional information regarding the content of this article, please contact a member of our Labor and Employment Department.

Fourteen Jennings Strouss Attorneys Recognized in the 2011 edition of Southwest Super Lawyers®

PHOENIX, Ariz. (May 12, 2011) – Jennings, Strouss & Salmon, PLC announced that fourteen attorneys have been named by Southwest Super Lawyers^® magazine as top attorneys in Arizona for 2011. Only five percent of the lawyers in the state are named by Super Lawyers.

Jennings Strouss attorneys who were selected for inclusion in the 2011 edition of Southwest Super Lawyers^® are:

• Gerald W. Alston - Alternative Dispute Resolution, Commercial Litigation, and International Arbitration, and International Trade and Finance Law
• John R. Christian - Tax Law and Trusts and Estates
• Frederick M. Cummings - Medical Malpractice Law, Personal Injury Litigation and Professional Malpractice
• John J. Egbert - Labor and Employment Law
• Lee E. Esch - Real Estate Law
• Jay A. Fradkin - Medical Malpractice/Personal Injury Litigation
• Carolyn J. Johnsen - Bankruptcy and Creditor-Debtor Rights Law
• Stephen E. Lee - Tax Law
• Bruce B. May - Real Estate Law
• Michael J. O’Connor - Commercial Litigation and Personal Injury Litigation
• Michael R. Palumbo - Alternative Dispute Resolution, Litigation and Real Estate Law
• J. Scott Rhodes - Administrative Law, Ethics and Professional Responsibility Law, and Legal Malpractice Law
• Jack N. Rudel - Corporate Law
• Brian N. Spector - Bankruptcy and Creditor-Debtor Rights Law

The selections for this list are made by the research team at Super Lawyers, which is a service of the Thomson Reuters Legal Division based in Eagan, MN. Each year, the research team at Super Lawyers undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area, and a good-standing and disciplinary check.

About Southwest Super Lawyers

Thomson Reuters Legal publishes Super Lawyers magazines across the country. In addition to the magazines, Thomson Reuters Legal publishes newspaper inserts and magazine special sections devoted to Super Lawyers. In 2011, Super Lawyers will reach more than 15 million readers. Super Lawyers was first published in 1991 by Law & Politics and was acquired by Thomson Reuters Legal in February 2010. Super Lawyers can be found online at superlawyers.com where lawyers can be searched by practice area and location.

Client Alert: Avoiding Discrimination Claims under the Genetic Information Nondiscrimination Act (GINA)

5.3.11

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual. However, there are some occasions when an employer must request health information, such as to support a request for medical leave or a reasonable accommodation, when it may obtain genetic information in response.

In order to avoid this, the new GINA regulations suggest providing the following warning to employees or health care providers when making such a request:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

If this warning is provided, any resulting acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA. Employers should consider adding this warning to any forms that may request medical information, including leave forms, pre-employment forms, or reasonable accommodations request forms.

Each case a business or individual may face is unique and may require legal advice. If you would like additional information regarding the content of this article, please contact a member of our Labor and Employment Department.

Client Alert: Arizona Legislature Provides Guidance to Employers in Dealing with the Arizona Medical Marijuana Act

Janet B. Hutchison
5.2.11

Governor Brewer has just signed legislation that will provide assistance to employers in their implementation of the Arizona Medical Marijuana Act ("AMMA") in the workplace. The new law amends existing drug testing statutes (A.R.S. § 23-493 et seq.) to make it easier for employers to discipline employees who use marijuana, even when they are cardholders under the AMMA. The new law also allows employers to use the electronic registry to verify an employee's cardholder status.

The AMMA allows limited use of marijuana for medicinal purposes without threat of criminal or civil penalty under Arizona law. It does not, however, alter marijuana's status as an illegal drug under federal law. The AMMA contains a very broad anti-discrimination provision that might prove challenging for many employers. Specifically, it prohibits employers from discriminating against a prospective or current employee who is a registered cardholder because of (1) the person's status as a cardholder, or (2) as a result of a registered qualifying patient's testing positive for marijuana through a drug screening. Although the AMMA created an exception to this anti-discrimination provision for employees who used, possessed or were impaired at the workplace or during the hours of employment, the AMMA did not define "impairment" or "under the influence."

Arizona's existing drug testing statutes already provided employers with some protection against lawsuits, but the new law expands that protection to account for the AMMA. The new law adds two new provisions that may help protect employers from litigation. First, it protects employers who take disciplinary action based on a good faith belief that an employee had an impairment while working on the employer's premises or during hours of employment. The law very favorably defines "impairment" to include symptoms that a prospective employee or employee may be under the influence of drugs or alcohol that may decrease or lessen the employee's performance, including the person's speech, appearance, odor and unusual behavior. The new law also defines "current use of any drug," and expands the definition of "good faith." These definitions will provide guidance and assistance to employers dealing with issues under the AMMA and drug testing.

The second new provision protects employers who take action to exclude an employee from performing a safety-sensitive position based on the employer's good faith belief that an employee is engaged in the current use of any drug if the drug could cause an impairment or otherwise decrease or lessen the employee's job performance or ability to perform the employee's job duties. The new law defines "safety- sensitive position" to include a job that includes duties that could affect the safety or health of the employee or others (such as operating a motor vehicle, equipment or machinery or power tools; performing duties at a customer's location;preparing or handling food or medicine; and working in certain occupations regulated by the professions section of Arizona law), as well as a job the employer designates as a safety-sensitive position.

Employers who have, or adopt, a drug testing policy and program that meet the requirements of Arizona's drug-testing statute will qualify for these new protections. Therefore, Arizona employers should review their drug-testing policies. If you have questions about this new law or the AMMA and their impact on your workplace, or if you would like assistance with reviewing and revising your policies, our labor and employment attorneys are available to assist you.