REPORT FROM COUNSEL

FALL 2007 ISSUE

CELEBRATING 40 YEARS

"Practicing law is a great field to get into; it provides an excellent educational background for any job where you have to interact with people, analyze situations, and be able to plan a course of action," said Gary Gilbert, founding shareholder of CGA Law Firm.

Gary, his wife, Karyl Lee, their four children and most of his 15 grandchildren have been born and raised in York County.

Gary has been working with CGA Law Firm since 1967; this year commemorates not only 40 years of successful practice for Gary, but for the partnership of Jon Countess, Gary Gilbert, and Peter Andrews.

Forty years ago the three young attorneys began their legal careers together with a law firm known as Laucks and Monroe. In 1985 when Samuel Laucks withdrew from the firm, Countess Gilbert Andrews was formed. The three gentlemen, along with talented additional attorneys since then, have worked closely together to build the firm into what it is today.

Gary began his law career shortly after graduation from Valparaiso University School of Law in 1962. He became partner in the law firm, Dell'Alba Gailey & Gilbert in 1963 where he specialized in trial and domestic relations work. During this time Gary was an officer in the Pennsylvania National Guard and served his active duty at the Armor school in Fort Knox, Kentucky.

Gary left the firm of Dell'Alba Gailey & Gilbert to join Laucks and Monroe. The areas of law that Gary specialized in changed throughout the years. He moved away from domestic relations work and concentrated his practice in real estate, business and commercial law, and the merging, sale and acquisition of various business entities. Business law is one of Gary's favorite areas of law to practice; "It can be the most interesting because it gives me a chance to think through problems and provide help in assisting people make their businesses successful, which in turn creates and maintains employment, all of which helps the community."

Gary has been active in the community and the Bar Association. He was a member of the House of Delegates of the Pennsylvania Bar Association, the Professionalism Committee (past vice-chairman), founding board member of the Susan P. Byrnes Health Education Center, and founding board member of the National Kidney Foundation -- York Chapter. He has served as an assistant district attorney for York County and is past president of the York County Bar Association.

Gary currently is enjoying his appointment as a member of the National Council for the College of Business Administration at Valparaiso University. The CBA's National Council is comprised of men and women who are considered outstanding leaders in their fields. The Council meets twice a year and provides the Dean with advice, expertise, and useful critique about the college's programs, mission, and direction. Gary enjoys the semiannual meetings and finds it interesting to spend time with these national business leaders and understand what has made them successful.

Gary continues to stay active in the community. In the future, he plans to play a lot of golf and spend as much time as possible with his 15 grandchildren.

DEPARTMENT OF HOMELAND SECURITY ISSUES FINAL REGULATIONS ON "NO-MATCH" LETTER TO EMPLOYERS

By: Anne E. Zerbe, Esquire

Chair Employment and Labor Law Department/Co-Chair Litigation Department

The Department of Homeland Security (DHS) announced several changes to existing Federal Immigration laws, including establishing a "safe harbor" procedure for employers to follow when they receive "no-match" letters from the Social Security Administration (SSA) or U.S. Immigration and Customs Enforcement (ICE). These regulations take effect September 14, 2007. Employers receive these letters from SSA when SSA discovers that the information on the W-2 Forms submitted by the employer does not match SSA records. In addition, ICE may send a similar letter (currently referred to as a "Notice of Suspect Documents") whereby ICE notifies the employer of a discrepancy in the documentation used to complete Form I-9.

If an employer follows the "safe-harbor" procedures after receiving a "no-match" letter from SSA or DHS, DHS will consider the employer's actions to be a reasonable response to the letter. Compliance with the "safe-harbor" provisions will preclude DHS from using the "no-match" letter to establish that the employer had "constructive knowledge" that the alien was not authorized to work in the United States, which is in violation of Section 274A(a)(2) of the Immigration and Nationality Act (INA).¹

Employers with constructive knowledge or actual knowledge that an employee is not authorized for employment in the United States violate the INA. Employers who comply with the "safe-harbor" provisions will not escape liability from actual knowledge that the employee is not authorized for work. However, DHS cannot use the "no-match" letter to establish constructive knowledge that the employer violated the INA if the employer follows the steps outlined by DHS as follows:

Section 1 -- Employee Information and Verification:

After receiving a "no-match" letter, the employer promptly checks its records to determine whether the discrepancy results from a clerical, typographical or similar error in the employer's records, or in its communications to SSA or DHS. If an error occurred, the employer should promptly correct its records, inform SSA or DHS of the correction and circumstances, verifies that the name and number, as corrected, match agency records, and makes a written record of the procedures the employer used to verify that the corrected employer records match SSA or DHS records. If the employer takes corrective actions within thirty (30) days of the receipt of the "no-match" letter, the employer will be considered to have acted promptly.

Section 2 -- Employer Review and Verification:

If the employer follows Section 1 and determines that the discrepancy did not result from a clerical or typographical or similar error, a reasonable employer must promptly request that the employee confirm that the records of the employer are correct. If the employee informs the employer that the records are incorrect (for example, a name change occurred), the employer should correct its records and inform SSA or DHS (in accordance with the "no-match" letter's instructions, if any) and verify the corrected records with SSA or DHS. If the employee informs the employer that the records are correct, a reasonable employer must ask the employee to pursue the matter personally with the relevant agency.² All steps taken to comply with Section 1 and 2 (including telephone conversations) should be timely documented in written form. An employer will be considered to have acted promptly if these steps are taken within thirty (30) days of the receipt of the "No-Match" letter.

According to the final rule, a discrepancy will be considered resolved only if the employer verifies with SSA or DHS that the employee's name matches the number assigned to that name by SSA, or verifies with DHS that DHS records confirm that the immigration status document or employment authorization document was assigned to the employee. Employers may verify a SSN with SSA by calling 1-800-772-6270. Additional information is available from SSA at www.ssa.gov/employer/ ssnvadditional.htm. Again, employers must document a record of the verification, as SSA is not obligated to provide any documentation to support the employer's attempts to verify the discrepancy.

Section 3 -- Other Employer Responsibilities:

If the discrepancy is not resolved within ninety (90) days of the receipt of the "no-match" letter, the employer must complete a new Form I-9 using the same procedures as if the employee were newly hired. Employers must continue to comply with the requirements for completion of the Form I-9 Employment Eligibility Verification Form. Employers cannot terminate an employee merely because the Employer receives a "no-match" letter.

If the discrepancy cannot be resolved and the identity and work authorization cannot be verified according to the procedure above, the employer must consider terminating the employee or taking the risk that DHS may find that the employer had constructive knowledge that the employee was not authorized to work in the U.S. and that the employer violated the INA.

If you have any questions concerning this article, please contact Anne Zerbe, Esquire, Chair Employment and Labor Law Department, Co-Chair Litigation Department.

Endnotes

¹ Section 274A(a)(2) states:

"It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States, knowing the alien is (or has become) an unauthorized alien with respect to such employment.

8 CFR 274a.2(b)(1)(ii).

² According to the final rule, the employee can investigate the matter by visiting a local SSA office, bringing original documents or certified copies required by SSA and other relevant documents or mailing them to the SSA office if permitted by SSA.

FIRM UPDATES

Events and Speaking Engagements

Benjamin L. Pratt, a faculty member of the Pennsylvania School Boards Association's Institute for Collective Bargaining and Labor Relations, taught a course titled, "Uncovering the Issues in Your Collective Bargaining Agreement." The second of a three part series, the course outlined how proper preparation for negotiations allows school boards to understand union proposals, strategies and goals. Ben also spoke on behalf of the PSBA at the School Solicitors' Symposium where he discussed the topic "Labor Law Update;" he reviewed current issues in bargaining, arbitration, unfair labor practices and benefits disputes. Lastly, he presented a workshop on the importance of employee manuals at the 59th annual Pennsylvania Association of Private School Administrators conference. He discussed the topic, "Developing an Employee Manual and an Overview of FERPA (Family Educational rights and Privacy Act)."

Jeffrey L. Rehmeyer II and Craig S. Sharnetzka provided a refresher course on "Municipal Procurement" for the Pennsylvania State Association of Boroughs (PSAB). The workshop provided information on topics such as: Municipal Procurement, Ethics, Sunshine in Government, How to Avoid Employment Litigation, Responsibilities of the Municipal Solicitor and Freedom of Speech.

Honors, Awards and Appointments

Jeffrey L. Rehmeyer II has been appointed as a judge for the 2007 Forty Under 40 Awards Program through the Central Penn Business Journal. As a 2006 recipient of this award, Jeff is well suited for the comprehensive evaluation process.

Lawrence V. Young was named a "Super Lawyer" for the second consecutive year by Pennsylvania Super Lawyers, a joint publication of Philadelphia Magazine and Law & Politics.

Carl E. Anderson was elected a new Member of the Board of Directors of the York Little Theatre, Inc. and the York County Community Against Racism ("YCCAR").

Professional Development

Margaret "Mieke" Driscoll attended the "Fifth Nonprofit Institute" hosted by the Pennsylvania Bar Institute. She participated in four workshops that will enable her to better assist clients with opening and maintaining nonprofit organizations of their own.

FIRM ANNOUNCEMENTS

Rees Griffiths Joins CGA Law Firm

Rees Griffiths joined the firm as a shareholder in August, 2007. As a seasoned litigator with over 30 years of experience he has the expertise to provide you with an extensive depth of knowledge in handling your legal challenges. He joins the firm's litigation practice as co chair, concentrating his practice on business and commercial, employment, fiduciary, insurance and tort litigation. Rees represents both plaintiffs and defendants in diverse matters related to business and individuals.

Rees graduated from the University of Pennsylvania and received his J.D. at Harvard University. He is a member of the American, Pennsylvania and York County Bar Associations and is active in the community. Rees is a founding and current board member for the Bell Socialization Services and ReStor York.

Eric Suter Joins CGA Law Firm

Eric Suter concentrates his practice on commercial and complex civil litigation. He joined the firm as an associate in August, 2007 as a member of the litigation practice group. His experience includes participating in the national representation of a Fortune 10 corporation before state and federal courts in a complex class action and government-initiated litigation. It also includes, advising Fortune 10 corporations on domestic and international regulatory matters.

Eric is a member of the York County Bar Association. He received his undergraduate degree from the University of Colorado and his law degree from the University of Colorado School of Law. Eric is licensed to practice in Pennsylvania and the District of Columbia.

"HOURS OF SERVICE" UNDER THE FMLA

To be eligible for leave under the federal Family and Medical Leave Act (FMLA), an employee must have been employed by the employer for the preceding 12 months, and the employee must have put in at least 1,250 "hours of service" during that time. Neither the FMLA nor the Fair Labor Standards Act (FLSA) defines "hours of service."

When a hospital determined that a nurse it employed was about seven hours short of the 1,250 hours threshold, and therefore denied the nurse FMLA leave in connection with her surgery for carpal tunnel syndrome, the circumstances required a federal appellate court to construe the proper meaning of "hours of service."

Both sides agreed that, in terms of actual hours spent on the job, the nurse came up just short of the FMLA threshold. But the facts were not that cut and dried. Under a "Weekender" compensation program devised by the hospital to provide an incentive for nurses to work undesirable weekend shifts, for every two-week period during which the nurse worked 48 weekend hours, she was paid as if she had worked 68 hours instead. If the hospital had calculated the nurse's hours in her first year using the "bonus hours" in addition to the hours the nurse was at work, she would have been eligible for FMLA leave.

The court upheld the hospital's decision and declined to find it liable under the FMLA. While the legislation itself provided little guidance for the court, an FMLA regulation on the subject of the requirement of 1,250 hours does state that "[a]ny accurate accounting of actual hours worked under FLSA's principles may be used." Another regulation states that "all hours are hours worked which the employee is required to give his employer." In this case, the court reasoned that the bonus hours for which the nurse received extra compensation could not count as "hours of service" because she was not required to "give" them to her employer, but rather could spend that time for her own purposes.

The nurse argued to no avail that her case should have had the same outcome as another case decided by the same court, in which the court held that an employee's "hours of service" under the FMLA did include some hours not actually worked. In that case, however, the employee requested FMLA leave after successfully suing for wrongful termination and obtaining a remedy that included full service credit and back pay for the hours she would have worked but for the termination. Thus, the employee could use these hours that would have been worked in calculating FMLA eligibility.

NEW LAWS ON LIVING WILLS

By Timothy J. Bupp, Esquire

The language of Pennsylvania's recently updated law on living wills starts with the clear reminder that "[y]ou have the right to decide the type of health care you want." The new law, which went into effect in January 2007, does not make your existing living will invalid, but it clarifies and expands the previous preferred legal format for living wills.

"Living wills" are not wills at all--they have nothing to do with passing on your money and assets to your heirs. Instead, living wills are documents that state your preferences for end-of-life medical care.

The new law renames the recommended document title. The new title, "Durable Health Care Power of Attorney and Health Care Treatment Instructions," more accurately describes the far more comprehensive document now recommended for use by Pennsylvania residents. The new document covers not only end-of-life decisionmaking, but also permits you to appoint a health care agent to make medical decisions for you even if your condition is not life-threatening. It also permits you to give specific directives and requests to your health care providers, as well as to include language regarding organ donation.

Because the newly recommended language for living wills is substantially expanded in the new law, it is a good time to review your living will or, if you do not have an existing living will, to arrange to draft one. All medical directive documents are an important part of your health care and financial planning and should be tailored to your specific personal preferences, as well as to your health care philosophy and spiritual beliefs.