Archive for the ‘Compliance’ Category

Understanding USERRA and its Employment Protections

Thursday, June 26th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information about The Uniformed Services Employment and Reemployment Rights Act (USERRA).

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides certain reemployment rights and benefit protections for military personnel including members of the National Guard and reservists. USERRA protects applicants and employees who serve in the military, or who apply to serve, from employment discrimination, and provides employment and reemployment rights after completion of military service or training, or application for service.

USERRA requires that service members provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. An employee should provide notice as far in advance as is reasonable under the circumstances. Additionally, service members are able (but are not required) to use accrued vacation or annual leave while performing military duty. USERRA establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights to five years; however, there are some exceptions to the five-year limit.

USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service (the long-standing “escalator” principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment.

The period an individual has to make application for reemployment or report back to work after military service is based on time spent on military duty. For service of less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period. For service of more than 30 days but less than 181 days, the service member must submit an application for reemployment within 14 days of release from service. For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service.

For more information on USERRA, check out Chapter 14 of CAI’s Employers’ Desk Manual on our web site (www.capital.org) under the Member Services section.

Improving Employee Attitudes Toward Safety in the Workplace

Tuesday, May 27th, 2014

In today’s post, Advice and Resolution team member Renee’ Watkins shares ways in which you can help your employees keep safety as a top priority in the workplace.

Renee' Watkins, HR Advisor

Renee’ Watkins, HR Advisor

Most safety managers will agree that the most difficult part of implementing a safety policy is getting employees to take safety seriously and to support the policy as it relates to them and to their fellow team members.

In the day-to-day production environment, where employees have a specific set of tasks to execute each day, safety concerns regarding the safe and proper execution of these tasks are often overlooked as routine redundancy takes over. The repetitive nature of the process can sometimes cause employees to implement shortcuts or even ignore safety precautions.

This is further complicated by taking new hires through the safety policy training only to have them mentored by someone who does not take safety seriously and undermines everything they have been taught through onboarding.

So, how does a safety manager promote safety policy throughout the organization with existing employees and alter their thought process to put safety at the forefront of everything they do? Below are three lessons and insights taken from high-stake manufacturing and construction industries that may help safety managers engage their employees in supporting a safety policy across the board.

Demonstrate Employee Wellness as a Priority

Ensure that corporate leadership prioritizes wellness in the workplace with a healthy balance of employer-sponsored benefits for both the physical and emotional well-being of the workforce. Opportunities for gym memberships, nutrition analysis and professional counseling are just a few examples of how management can show concern for their employees’ overall health.

Involve Employees in Safety Policy and Engagement

Communication should be a two-way street in order for any policy to work effectively. Regular emails or other policy reminders with regard to safety in the workplace will serve to remind everyone that safety is a priority, as well as a concern. Employees should also be involved in providing feedback to management relating to any safety concerns they notice or would like to see incorporated into a policy. An open-door approach, which encourages employees to speak freely if they feel there is a risk on the production floor, should be present and communicated.

Measure Employee Stress Levels

Employees are often unable to separate their professional lives from their personal lives and many have issues they deal with on both sides of the fence each and every day. Management in every level of the organization should pay close attention to the overall emotional health of their employees and act to offer assistance at any time when something seems amiss. Team members who may know the details of what their fellow co-workers are facing should be encouraged to speak up and inform management when they feel involvement is warranted, without fear of being exposed for breaking the confidence of their co-worker.

These techniques can also apply to more than just manufacturing and construction, and will help safety managers to convey the importance of employee safety with management’s full support. By demonstrating a genuine concern for employee safety and promoting that concern through frequent and consistent communications with the workforce, safety in the workplace will remain at the forefront of each worker’s mind as they go about the execution of their daily tasks.

For additional help with your company’s safety efforts, please call a member of CAI’s Advice and Resolution Team at 919-878-9222 or 336-668-7746.

Key Learnings from 5 Different Areas of State and Federal Employment Law

Thursday, May 22nd, 2014

PPT Slide ELLU 2014More than 430 HR professionals and company executives attended CAI’s 2014 Employment and Labor Law Update. Participants traveled to the McKimmon Center in Raleigh for the two-day event on May 14 and May 15 to receive the latest updates in state and federal law.

Knowledgeable attorneys from Ogletree Deakins, as well as an expert from CAI, shared important changes in the law at the conference. Topics the presentations covered included workplace investigations, FMLA, wage and hour issues, the ADA, and more.

Below is some of the information, which covers five different areas of employment law, discussed at the conference:

Expect more aggressive investigative tactics from the EEOC:

  • The EEOC is making extensive requests for information not germane to the charge at hand
  • Increased threats and uses of subpoenas
  • Increased demand for on-site investigations
  • During on-site investigations, EEOC increasing demands to review signage, personnel files and make general employee inquiries unrelated to charge
  • Increased demands for on-site tours and witness interviews
  • Aggressive behavior in settlement negotiations

Enforcement Trends in Immigration Law:

  • There’s nothing random about audits from ICE
    • Most audits are lead-driven and are discovered by a tip-line complaint, local law enforcement data sharing, and federal agency data sharing
  • Avoid these common I-9 mishaps:
    • Using a wrong or outdated I-9 form
    • Not completing Section 1 or 2 in the specified time frame
    • A new hire did not sign Section 1
    • Someone else completes Section 1 but they do not have a Preparer or Translator Certification
    • Hire date is missing
    • Employer’s address is incomplete

Updates in the ADA:

  • Leave as a reasonable accommodation
    • Granting a leave of absence may be considered a reasonable and required accommodation under the ADA if no other sufficient reasonable accommodation is available
    • Maximum leave policies don’t satisfy the ADA. However, that doesn’t mean you can’t have one. You will just have to consider the ADA before discharging an employee for exceeding the maximum
    • An accommodation is “reasonable” if it “seems reasonable on its face, i.e., ordinarily in the run of cases”—in other words—if it appears feasible or plausible

Updates in NC Legislation—Bills of Interest:

  • House Bill 846: Job and Education Privacy Act- would prohibit employers and colleges from requiring individuals to disclose access information to personal social media and email accounts
    • Passed the house on May 16, 2013 and is in the senate; eligible for consideration in the 2014 session
  • House Bill 872: Protect NC Right-To-Work – declares it unfair trade practices for any contract to require a contractor or sub-contractor to use unionized labor. Contracts involving federal funds would be exempt
    • Passed in the House on May 2, 2013 and is in the senate; eligible for consideration in 2014 session

The NLRB is cracking down and scrutinizing company rules in several business areas, including social media:

  • Avoid the following in your company social media policy to stay on good terms with the NLRB
    • Prohibiting discussion of wages, benefits, and other terms and conditions of employment
    • Prohibiting anyone from sharing confidential information without clarifying the definition
    • Prohibiting “no-disparagement” or words of “negative impact”
    • Vague restrictions about inappropriate conversations
    • Prohibiting the use of trademarks or company logos

For additional information on CAI’s conferences, please go to https://www.capital.org/eweb/DynamicPage.aspx?site=cai&webcode=cai-training-conferences.

 

Wage and Hour Law – Lectures, Seminars and Meetings

Thursday, May 1st, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information about wage and hour compliance.

john g editUnder the Fair Labor Standards Act (FLSA), an employer must pay its employees at least the minimum wage for all hours worked, and time and one-half overtime pay based on an employee’s regular rate of pay for all hours worked in excess of 40 in a workweek unless the employee is exempt for some reason. The time an employee spends in meetings, training, attending a class or course, or attending a workshop may or may not be hours worked based on the circumstances and under certain conditions.

Employee attendance at meetings, lectures, training programs and similar activities need not be counted as working time if the following criteria are met:

  • Attendance is outside the employee’s normal working hours;
  • Attendance is voluntary;
  • The course, lecture or meeting is not directly related to the employee’s job; and
  • The employee does not perform any productive work during such attendance.

Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary if the employee is given to understand or led to believe that his or her present working conditions or the continuance of his or her employment would be adversely affected by nonattendance.

The training is directly related to the employee’s job if it is designed to make the employee handle his or her job more effectively as distinguished from training him or her for another job, or to a new or additional skill. Where a training course is instituted for the purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his or her present job, the training is not considered directly related to the employee’s job even though the course incidentally improves his or her skill in doing his or her regular work.

Of course, if an employee on their own initiative attends an independent school, college or independent trade school after hours, the time is not hours worked for the employer even if the courses are related to the employee’s job.

Additional information regarding wage and hour issues will be shared at the 2014 Employment and Labor Law Update. The conference will take place at the McKimmon Center in Raleigh on May 14 and May 15. In addition to wage and hour compliance, , presenters will cover immigration law, NC legislature, ADA, minimizing lawsuits, protecting proprietary information, and more. Register today at www.capital.org/lawupdate.

Shifting Sands in the Small Group Market Under the Affordable Care Act

Thursday, April 24th, 2014

The post below is a guest blog from Steve Byrd who serves as Principal, Health & Welfare Consultant  for CAI’s employee benefits partner Hill, Chesson & Woody.

 hcw april picMany questions have arisen from the ever changing Affordable Care Act (ACA), specifically amongst the small group employers. Many feel as though they have been left out in the cold with more questions than answers when it comes to the changing regulations.

“Should I renew early and what happens if I do? How do I handle the new small group age rates? How do I communicate the new benefit changes concerning, smoker rates, out-of-pocket maximums, age-rated premium schedules, metallic levels, pharmacy MAC pricing changes, pediatric dental/ vision changes, and deductible limit requirements?”

With new regulations published every week and a variety of health-care related bills moving through Congress every day, it is difficult for a large company much less a small employer, to keep up with the changes.

One bill recently passed through Congress and signed by the President (Protecting Access to Medicare Act of 2014)) is worthy of special attention by small employers. This bill, known as the “doc fix” bill, includes a section that ends the limitations on deductibles for small group employer-sponsored health plans that was previously imposed by the Affordable Care Act.

Prior to passage of this bill, deductible levels of no more than $2,000 for individuals and $4,000 for families were required in the small group market. This deductible cap made it extremely difficult for small group carriers to offer a wide range of plan designs within their small group plan offerings.

Small group carriers struggled to design plans that met the deductible requirements while also meeting the required Actuarial Value (AV) bands. The ACA requires small group carriers to offer plans at four specific AV levels (called Metallic Levels): Platinum (90%), Gold (80%), Silver (70%), and Bronze (60%). Deviations of no more than 2% are allowed. To operate within these Metallic Levels, many small group carriers made changes that resulted in higher per occurrence copays and increased costs for non-generic medications.

The passage of the Protecting Access to Medicare Act of 2014 allows carriers designing plans for the small group market to move beyond the $2,000/$4,000 deductible level and still meet the required Metallic Levels. It also allows small employers to remain creative in their plan designs, especially those that have focused benefits strategies around Consumer Driven Health Plans. To find out more about this recent change to the ACA, continue on to Robb Mandelbaum’s coverage on the “doc fix” bill.

Contacting an Employee’s Health Care Provider under FMLA

Tuesday, April 22nd, 2014

CAI’s Advice and Resolution Team answers several questions from members daily. The team often receives questions concerning the Family and Medical Leave Act (FMLA), such as this one below:

Does the Family and Medical Leave Act (FMLA) allow an employer to contact an employee’s health care provider about his or her serious health condition?

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

In today’s post, Advice and Resolution Team Member John Gupton offers guidance for this employer question:

If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. However, the employer may contact the health care provider for purposes of clarification and authentication of the medical certification (whether initial certification or recertification). Authentication means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. Clarification means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.

Under the regulations, however, when contacting an employee’s health care provider for authentication or clarification of the medical certification, an employer may use a health care provider, a human resource professional, a leave administrator or a management official. But, the FMLA regulations make clear that in no case may the employee’s direct supervisor contact the employee’s health care provider.

Also, the FMLA regulations state that contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. In order for an employee’s HIPAA-covered health care provider to provide an employer with health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer.

If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear. It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary.

For more information, please contact a member of CAI’s Advice and Resolution Team at 919‑878‑9222 or 336‑668‑7746.

 

9 Things You Should Know About Immigration Law and I-9′s

Tuesday, April 15th, 2014

I9 paperworkImmigration law can often be a tricky subject for employers to tackle. To ensure you’re keeping your organization compliant, here is some helpful information to remember:

1. Employers who have constructive knowledge that an employee is not authorized to work, but continue to allow the employee to work are subject to fines.

2. Although employers are not required to do I-9’s for contractors, they have a duty to ensure to the best of their ability that contractors are legally authorized to work in the United States.

3. Employers who hire out-of-state employees where there is no company representative to handle the I-9 process may contract with someone to complete I-9’s on their behalf, such as a notary public. (Note: Texas does not allow notaries to perform this service.)

4. Employers cannot require an employee to present documentation to support the Section 1 information. The employee attests by signature that this information is correct.

5. Employers or their agents are not required to notify the U.S. Immigration and Customs Enforcement (ICE) of illegal aliens discovered through the I-9 process, and it is not recommended that you do so.

6. The I-9 form cannot be completed until a job offer is made and accepted. Because the I-9 requires date of birth and identifies whether the person is a U.S. citizen or alien, it could be a source of potential discrimination charges if an applicant were required to complete it pre-offer and then not be hired.

7. The I-9 Form states that Section 1 should be completed and signed by the employee on the day employment begins. This is defined as the first day of work where the employee is providing labor or services in exchange for pay.

8. It is fraud if someone other than the employee fills in Section 1 but does not provide the required information and a signature in the Preparer and/or Translator Certification box, or if HR or a company representative fills in missing information in Section 1 for the employee.

9. ICE investigations are lead-driven. Leads that appear to have some merit must be further investigated to avoid constructive knowledge and to resolve the issue.

Ogletree Deakins’ attorney Bernhard Mueller will provide additional information and updates regarding immigration law at the 2014 Employment and Labor Law Update. The conference will take place at the McKimmon Center in Raleigh on May 14 and May 15. In addition to immigration law, presenters will cover wage and hour issues, NC legislature, ADA, minimizing lawsuits, protecting proprietary information, and more. Register today at www.capital.org/lawupdate.

Photo Source: dataflurry

When Must Employers Seek a Religious Accommodation Regarding a Personal Appearances Policy?

Thursday, April 10th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information with employers about religious accommodations for employees.

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs and is prohibited by the federal law known as Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC), which is a federal agency, is responsible for enforcing this law. The law protects not only people who belong to traditional organized religions, like Buddhism, Christianity, Hinduism, Islam and Judaism, but also others who have sincerely held religious, ethical or moral beliefs. Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.

Unless it would be an undue hardship on the employer’s operation of its business, an employer must reasonably accommodate an employee’s religious beliefs or practices. This applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. These might include, for example, wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an employee’s observance of a religious prohibition against wearing certain garments (such as pants or miniskirts).

Also, as mentioned above, an employer does not have to accommodate an employee’s religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. For example, workplace safety issues, like the prohibition of wearing loose garments around machinery, don’t need to be overlooked for the sake of accommodation.

When an employee or applicant needs a dress or grooming accommodation for religious reasons, it is the employee’s responsibility to notify the employer that he or she needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant the accommodation.

The EEOC has issued guidance on religious discrimination issues in the workplace, which is located at http://1.usa.gov/rel-dis. In addition, the EEOC has a listing of best practices in the workplace regarding religious issues, which is located at http://1.usa.gov/bp-rel.

If you have questions about religious accommodations, please contact a member of CAI’s Advice and Resolution team at 919‑878‑9222 or 336‑668‑7746.

 

Cash Shortage Deductions from Commission Payments

Thursday, April 3rd, 2014

CAI’s Advice and Resolution Team answers several questions from members daily. Many questions the Team receives deal with Wage & Hour issues and what is right under the Fair Labor Standards Act (FLSA) Here’s a recent question the team received:

George Ports, Senior Executive and HR Advisor

George Ports, Senior Executive and HR Advisor

Are Employers Allowed to Deduct Cash Shortages from a Salaried Exempt’s Commissions?

In today’s post, Advice and Resolution Team Member George Ports offers guidance for this employer question:

According to the US Department of Labor’s Wage & Hour Division, cash shortage deductions from commission payments made to salaried exempt employees would not affect their exempt status under section 13(a)(1) of the Fair Labor Standards Act (FLSA) as long as the affected employee meets both the duty and the guaranteed salary level tests required.

An employee will be considered to satisfy the salary level test if the employee is paid on a salary basis at a rate of not less than $455.00 per week. The salary basis test is met if the employee regularly receives each pay period “a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” An exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked. [Note: There are limited exceptions regarding deductions from exempt pay. For more information, go to http://j.mp/ex-su.]

An employer may provide an exempt employee with additional compensation without losing the exemption or violating the salary basis requirement, if the employment arrangement also includes a guarantee of at least the minimum weekly-required amount paid on a salary basis. Thus, for example, an exempt employee guaranteed at least $455 each week paid on a salary basis may also receive additional compensation of a one percent commission on sales.

An exempt employee may receive a percentage of the sales or profits of the employer if the employment arrangement includes a guarantee of at least $455 each week paid on a salary basis. Similarly, the exemption is not lost if an exempt employee who is guaranteed at least $455 each week paid on a salary basis also receives additional compensation based on hours worked for work beyond the normal workweek. Such additional compensation may be paid on any basis (e.g., flat sum, bonus payment, straight-time hourly amount, time and one-half or any other basis), and may include paid time off. In other words, additional compensation paid on any basis besides the guaranteed salary is not inconsistent with the salary basis of payment.

Wage and hour regulations require only that exempt employees be paid a guaranteed salary of at least $455 per week, and any additional compensation above this salary amount is generally something that may be agreed upon between the employer and the employee. The prohibition against improper deductions from the guaranteed salary does not extend to any such additional compensation provided to exempt employees.

Cash shortage deductions, therefore may be made from a salaried exempt employee’s commission payments without affecting the employee’s exempt status as long as the commission payments are bona fide and are not paid to facilitate otherwise prohibited deductions from the guaranteed salary.

If you have wage and hour regulation questions, please contact a member of CAI’s Advice and Resolution Team at 919‑878‑9222 or 336‑668‑7746.

12-Month Period Under FMLA

Tuesday, March 11th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information with employers about the Family and Medical Leave Act (FMLA).  

john g edit

John Gupton, General Counsel and HR Advisor

The Family and Medical Leave Act (FMLA) entitles eligible employees who work for covered employers to take unpaid, job-protected leave in a defined 12-month period for specified family and medical reasons. Generally, employers may select one of four options to establish the 12-month period to be uniformly applied to all employees taking FMLA leave.

The employer may use any of the following methods to establish the 12-month period:

(1) The calendar year – 12-month period that runs from January 1 through December 31;
(2) Any fixed 12-months – 12-month period such as a fiscal year, or a year starting on an employee’s anniversary date;
(3) The 12-month period measured forward – 12-month period measured forward from the first date an employee takes FMLA leave. The next 12-month period would begin the first time FMLA leave is taken after completion of the prior 12-month period; or
(4) A “rolling” 12-month period measured backward – 12-month period measured backward from the date an employee uses any FMLA leave. Under the ‘‘rolling’’ 12-month period, each time an employee takes FMLA leave, the remaining leave entitlement would be the balance of the 12 weeks which has not been used during the immediately preceding 12 months.

Employers may select any one of the four methods to establish the 12-month period as long as the method is applied consistently and uniformly for all employees.

Before changing to a different method of calculating the 12-month period, an employer must first give all employees at least 60 days notice of the intended change and the transition must take place in such a way that the employees retain the full benefit of their leave entitlement under whichever method affords the greatest benefit to the employee.

If an employer fails to select one of the 12-month period methods discussed above, the employer must use the 12-month period method that is the most beneficial to the employee.

Lastly, under no circumstances may an employer change the 12-month period to avoid the requirements of the FMLA.

For more information on the FMLA, go to http://www.dol.gov/ whd/ fmla/ index.htm.