Archive for the ‘Compliance’ Category

Are You Making Costly Compliance Mistakes?

Thursday, March 19th, 2015

Business meetingNot knowing the different federal and state employment laws is not an excuse for not following them. Making sure you are in compliance can be overwhelming as several regulations and laws get amended or updated each year. Trying to keep up with all of the information may be time consuming or frustrating, but staying informed is necessary for keeping you and your organization protected.

Based on the EEOC’s 2014 Charge Receipt, employers all over the country lost nearly 300 million dollars for not staying compliant with employment law in that year. Don’t let this happen to your organization. Government enforcement agencies like the EEOC are always looking for ways to improve their methods for finding employers that are not following the law—whether purposefully or unknowingly.

Follow these three steps to help you stay on top of any federal or state law changes:

  • Research, research, research

Research is essential for making sure you understand the responsibilities you have to your employees and the business community. Some helpful websites to make sure you’re getting the information you need include: http://www.eeoc.gov/, http://www.dol.gov/, and http://www.nclabor.com/.

  • Attend an employment law conference or web series

Let’s face it—we are not capable of doing it all or knowing it all. Finding information on your own through internet searching or government agency announcements is important and should be part of every employer’s quest to stay compliant. Attending an employment law conference or joining a web series on the topic with industry experts, such as employment law attorneys, ensures that you get a deeper dive and a broader base of knowledge to keep your company protected.

  • Form a community

Make sure to stay in touch with your industry peers. The community support you can receive will be helpful for you when you need assistance in making a policy decision or handling a difficult employee situation. Whether they are coworkers on your team or members of a local industry group you meet up with monthly, it’s important for you all to discuss the different issues and laws that currently and will eventually affect employers.

Knowledge is your strongest defense against the complicated, ever changing world of federal and state employment law. Don’t risk your company’s reputation or having to pay attorney fees because you were unaware of the information you needed to keep your company safe and protected.

Guarantee that your company stays on track in 2015 and beyond by joining us for our 2015 Employment and Labor Law Update on May 13 and May 14 at the McKimmon Center in Raleigh. You will learn everything you need to know regarding updates to state and federal employment law. Some of the conference topics include: the NLRB, the Affordable Care Act, undue hardships and the ADA, sexual harassment, data security, FMLA and more!

Drugs, Alcohol and the ADA

Thursday, March 12th, 2015

Advice and Resolution Team Member John Gupton shares helpful information about the ADA and what the law allows in regard to drugs and alcohol.

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

In general, the Americans with Disabilities Act (ADA) prohibits covered employers from discriminating against a “qualified individual with a disability” in regard to job applications, hiring, advancement, discharge, compensation, training, or other terms, conditions, or privileges of employment. The ADA requires employers to make “reasonable accommodations” to the known physical or mental limitations of an otherwise qualified individual with a disability, unless to do so would impose an “undue hardship” upon the employer.

The ADA specifically allows employers to prohibit the use of alcohol or illegal drugs in the workplace and require that employees not be under the influence. Employers may test for the use of illegal drugs under the ADA. Employers also may maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace and may conduct alcohol testing for this purpose if they have a reasonable belief that an employee may be under the influence of alcohol at work.

While current illegal drug users and alcoholics who cannot safely perform their jobs are not protected by the ADA, those who have been rehabilitated or are participating in a supervised rehabilitation program and are not currently using drugs or who are erroneously regarded as engaging in the illegal use of drugs, are covered. Thus, an employer may be required to make reasonable accommodation to recovering alcoholics, for example, by allowing time off to attend Alcoholics Anonymous meetings.

For more information about the ADA, go to http://j.mp/dis-d. If you have questions about the ADA, please contact a member of CAI’s Advice and Resolution team at 919‑878‑9222 or 336‑668‑7746.

AAP: Changes to Veteran Self-Identification Solicitation

Thursday, February 26th, 2015

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares important information regarding AAP requirements and solicitation of self-identification information from veterans.  Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

On September 25, 2014, the Veterans Employment and Training Service issued a final rule changing the reporting requirements for employers covered under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA).  This final rule rescinds the VETS-100 report and changes the annual veterans report from VETS-100A to VETS-4212.  This reporting change will allow employers to report on aggregated protected veterans rather than the individual veteran classification.  There will also be the option to report on veteran hires and total hires either by the EEO-1 categories or in total.

Since this changes, federal contractors and subcontractors subject to AAP requirements have been asking how this affects their solicitation of veteran classifications during the hiring process.  Regulation changes to VEVRAA effective in 2014 required contractors to solicit veteran status both pre job offer and post job offer.  The solicitation was different pre-offer versus post-offer.  The pre-offer form requested only for applicants to voluntarily self-id as “protected veteran” while the post-offer form requested individuals to identify as specific veteran classifications.  Since the VETS reporting in 2015 will report on aggregated veteran data, the post-offer requesting specific classifications seemed unnecessary.

The Office of Federal Contract Compliance Programs (OFCCP) responded on January 20, 2015 with guidance regarding the self-identification forms and solicitation.

 

  1. Federal contractors and subcontractors may use the same self-identification form for per-offer and post-offer solicitation during the hiring process. This form will invite applicants to voluntarily self-identify as “protected veteran”. There is no need to request specific veteran classification
  2. Contractors may continue to request specific veteran classification post-job offer if they choose to do so.

 

For more information on affirmative action and the recent changes within it, be sure to sign up now for our FREE one hour webinar AAP: What You Need to Know About Recruiting and Applicant Tracking on March 24, 2015.

Our affirmative action team at CAI is dedicated to helping you with all of your affirmative action needs. Whether it’s designing an AAP plan for your company, doing a full audit on an existing plan, or simply answering a few questions, please contact me directly at 919-713-5241 or kaleigh.ferraro@capital.org.

Follow the DOs and DONTs of Background Checking in 2015

Thursday, January 29th, 2015

The following post is from CAI’s Kevin von der Lippe. He serves as CAI’s private investigator and leads the company’s reference checking department. Kevin has some helpful tips to keep you on the right track in 2015.

Kevin von der Lippe, Private Investigator

Kevin von der Lippe, Private Investigator

With the start of the New Year, most of us are happily looking toward the future and have already began adopting our newly appointed “good habits” for 2015.  So, now that you’re back on path of good intentions, make sure you’re hiring practices are as well! Make sure you’re following the federal Fair Credit Reporting Act (FCRA) when requesting your background checks in 2015 before you’re caught on the wrong end of a class action law suit!

Unfortunately, 2014 was a hard year for some… blindsiding several uninformed businesses with more than a few unwelcomed class action lawsuits for disobeying the FCRA.  Why you ask? Because in 2007 the Supreme Court ruled[1] that if a company displays willful acts of disregard for the FCRA, then such companies may be sued for punitive damages without proving actual damages.

And in 2014, suing is exactly what they did…

November 2014, Publix Super Markets settled their class action lawsuit for $6.8 million.  In October, Dollar General settled their suit for a little over $4 million. And after being sued by a former employee in September, Cannon Solutions America, Inc. settled for an undisclosed amount.

All from technical flaws.

Many of these cases are brought forth over the company either not obtaining proper permission from the applicant or by not providing proper notice to the applicant pending a negative hiring action.  In both cases the law is clear.

You must obtain permission – with very specific wording – on a stand-alone release form before you conduct a background check.  The release form cannot be clouded by having extraneous information, or by asking the applicant to waive his or her rights.

If you receive a background check with negative information, which gives you too much heartburn to move forward with the job offer, you must provide the applicant with a chance to review the report and dispute any inaccuracies before you make your final hiring decision.  How to comply with the process is clearly spelled out in the FCRA.  You must provide your applicant with a copy of the report, a summary of their rights under the FCRA, and a pre-adverse action letter that tells them the contact information for your background checking company.  Some states may require some additional information (NC requires a Security Freeze document).  You should then give your applicant a “reasonable amount of time” to review the report and make a dispute.  We believe that five business days will be sufficient in many cases.  Afterwards you must provide the applicant with a final adverse action letter that states they are no longer a candidate, and again provides the background checking company’s contact information.

For more information, or to see a sample of the FCRA documents, please visit our website www.capital.org/vea, or contact Kevin von der Lippe at (336) 899-1150.

[1] Safeco vs. Burr 551 U.S. 47 (2007)

Prior To Discharge – Helpful Tips for Employers

Thursday, January 22nd, 2015

In today’s video blog, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution team, discusses helpful tips for employers prior to the discharge of an employee.

John starts with saying the first step is to make sure you involve Human Resources before you do anything else, which is often overlooked. The next few tips involve evaluating and handling the issue and making sure the actions were fair to your employee. Additional tips are given to ensure a thorough process of documenting and reviewing the issue, which is important if the discharged employee challenges the termination.

In the video, John says it is important to make sure you have done everything you can, and have done everything right before discharging an employee. If a terminated employee were to challenge the discharge, these tips would help put your company in the best position possible to defend its actions.

For more information on steps to take before discharging an employee, or if you have any questions, call a member of our Advice and Resolution team today at 919-878-9222 or 336-668-7746. The team is now available 24 hours each day throughout the week! Please give us a call!

Last Minute Requirements for 2015 Affirmative Action Plans

Tuesday, December 23rd, 2014

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares information on affirmative action plans for 2015. Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

It’s that time of the year again.  Not only is the holiday season here, but it is also the time that many federal contractors and subcontractors update their affirmative action programs (AAPs).  If your company prepares AAPs on a calendar year, you should begin preparing for your 2015 AAP update.

In order to develop your annual report, you’ll need to gather data that will be analyzed in the plan.  Below are different types of data you’ll need.

  • Employees: This is a listing of your current employees at a point in time
  • Hires: A list of employees hired in 2014
  • Applicants (internal and external): Applicants who applied for positions filled in 2014
  • Promotions: A list of all promotions that occurred in 2014
  • Terminations: A list of all terminations for 2014

Additional information you should also review and update as you prepare the AAP include:

  • Targeted outreach and recruiting efforts
  • Update your signed EEO/Affirmative Action policy
  • Notify vendors and suppliers your organization is an affirmative action employer and they may be covered by the affirmative action laws.
  • Ensure subcontracts and purchase orders contain EO Clause and specified language
  • Ensure employment openings are listed with the appropriate state employment service

Additionally, you should ensure you have implemented the requirements of the regulation changes for protected veterans and individuals with disabilities.

  • Provide applicants the opportunity to self-identify as an individual with a disability and protected veteran. This solicitation should occur both pre-job offer and post-job offer. Data on applicants and hires must be reported in subsequent AAPs.
  • Include Utilization Goals for individuals with disabilities. This 7% Goal will apply to each job group within your AAP. If you have fewer than 100 employees, you may set a goal for your workforce as a whole. Assessments on meeting these goals will occur in future AAPs.
  • Include Hiring Benchmarks for protected veterans. The hiring benchmark data provided by the OFCCP is 7.2%. The hiring benchmark is set for the AAP location as a whole.

For more information on affirmative action and the recent changes within it, please feel free to contact Kaleigh Ferraro at (919) 713-5241 or Kaleigh.ferraro@capital.org.

5 Important Topics You Might Have Missed from the 2014 Triad Employment Law Update

Tuesday, November 25th, 2014

2014 TELU Flash ImageMore than 170 people attended CAI’s annual Triad Employment Law Update on Friday, November 14. Held at the beautiful Grandover Resort in Greensboro, the conference informed participants on the most recent updates in state and federal employment law. Knowledgeable attorneys from Constangy, Brooks and Smith, LLP, as well as compliance experts from CAI, shared information on several employment law topics, such as DOMA, health care reform, I-9 and E-verify compliance and FLSA.

Below are five important topics that speakers highlighted at this year’s conference:

I-9s Made Easy

  • I-9s must be completed by employees no later than the first day of work and completed by the employer no later than the third day of the new hire’s employment.
  • Retain I-9s for the longer of three years or one year after an employee’s termination.
  • Office of Special Counsel of the US Justice Department investigates I-9 complaints of over-documenting an I-9, asking for a particular document, not accepting a valid document and requiring a document when one is not needed.

Practical Tips for Complying with Health Care Reform

  • Determination of “full-time” – employees must be treated as full-time in the following “stability period” if the employee averages 30 hours during the measurement period.
    • Stability period must last for at least six months and be the same for new employees and on-going employees.
  • Carefully consider the best measurement and stability periods to minimize costs.
  • Track hours to confirm that individuals are properly classified.

Correcting FLSA Mistakes

  • Meal breaks must be continuous and uninterrupted. If not, you must pay employees for that time.
    • Tips – Don’t let employees take lunch at their work stations, train supervisors to respect lunch, and if you use automatic meal break deductions, have a procedure in place for exceptions.
  • You must pay employees for preliminary and postliminary work that is indispensible to their principal work activities. For example, time spent logging into the computer system and shutting it down at the end of the day is likely compensable.
    • Tips – allow employees to clock in when they arrive at their work stations. If your clock in system is run through a computer system, either leave the computer on or add a set number of minutes to the time each day, and have a procedure for exceptions.

Avoid Discrimination with Unique Employees

  • Public image policies should not be based upon discriminatory preferences of clients. Be sure to avoid improper stereotypes, and if you have a questionable policy, ask yourself if you’re willing to defend it in court.

Defense of Marriage Act (DOMA) and Same-Sex Marriage

  • In 2012 North Carolina passed a constitutional amendment saying marriage is between one man and one woman. In 2013 the Supreme Court of the United States declared that amendment unconstitutional under Section 2 of DOMA.
  • Same-sex spouses will be entitled to all spousal benefits if they married in NC after October 10, 2014.
  • Same-sex spouses will be entitled to all spousal benefits if they were validly married in another state before moving to NC.
  • Same-sex spouses will not be entitled to spousal benefits if they were “married” in a state that doesn’t recognize it, but they can always remarry in NC.

For further assistance on staying compliant with state and federal employment laws, please call a member of CAI’s Advice and Resolution Team at 919-878-9222 or 336-668-7746.

Affirmative Action – Revised Audit Scheduling Letter for 2014

Thursday, November 20th, 2014

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares information on affirmative action plans from the OFCCP. Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

On September 30, 2014, the Office of Federal Contracts Compliance Programs (OFCCP) released an updated audit Scheduling Letter. The OFCCP indicated they would begin issuing a new audit scheduling letter on October 15, 2014 for contractor audits.  Outlined below are the significant changes from the previous scheduling letter and itemized listing and the newly approved one.

  • The Itemized listing requires companies to submit 22 items versus the 11 previously required.
  • Employment Activity data (applicants, hires, promotions, terminations) must be submitted including race subgroups not just minority totals. Information on applicants with “unknown” race and gender must also be included.
  • Compensation data must be submitted at the employee level and not aggregated as previously required. Data for all employees includes: race, gender, hire date, job title, EEO-1 category, job group, hours worked, base pay or rate plus additional compensation such as bonuses, commissions, merit pay, etc. Compensation date should be submitted electronically.
  • Copies of reasonable accommodation policies, requests and resolutions.

 

The revised scheduling letter and itemized listing also incorporates new items related to the revised regulations for Section 503 of the Rehabilitation Act and Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). This newly requested information includes:

  • Evaluation results of effectiveness of outreach and recruitment efforts for individuals with disabilities and protected veterans.
  • Documentation of actions taken to comply with audit and reporting system requirements.
  • Submittal of data collected regarding number of applicants, applicants who identified as veterans or individuals with disabilities, number of hires and those that identified as veterans or disabled and job openings and jobs filled.
  • Documentation on hiring benchmarks for veterans and analysis on utilization goals for individuals with disabilities. Results of most recent assessments on personnel processes, including date performed, actions taken and date of next scheduled assessment.
  • Recent assessments of physical and mental qualifications, including date performed, actions taken and date of next scheduled assessment.

Contractors should review the revised Scheduling Letter as well as their affirmative action program and data to ensure they are properly capturing and maintaining requested information. Contractors only have 30 days from receipt of the letter to gather and submit the requested information.

For more information on affirmative action and the recent changes within it, please be sure to sign up for our free webinar Affirmative Action 101: The Basics on December 2, 2014.

For helpful tips and information on preparing your next affirmative action plan, please sign up for our next affirmative action class AAP: What it Takes To Prepare a Compliant Affirmative Action Plan on December, 12, 2014.

Stereotyping and Discriminating Based on Sex and Sexual Orientation, and the Related Federal Laws

Thursday, October 9th, 2014
Robin Shea, Partner at Constangy, Brooks & Smith

Robin Shea, Partner at Constangy, Brooks & Smith

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2014 Triad Employment Law Update. This post originally appeared on her blog Employment and Labor Insider.

The Employment Non-Discrimination Act is dead again. Is there any federal law on same-sex harassment or discrimination? If so, what is it? Here are some scenarios that may be helpful in picking through this crazy extremely complex and rapidly transitioning area of the law. (Answers are provided after Scenario 6, below.)

 

Scenario 1. Joe has a huge crush on John. Joe makes lewd and unwelcome comments to John, and tries to corner him to make sexual advances to him. John has made it clear to Joe that he is not interested, but Joe doesn’t listen.

Under federal law, is there a problem?
pollcode.com free polls

 

Scenario 2. Bill interviews Lester for a job. Lester is huge, hairy, and masculine looking. When Bill offers him a job, Lester says he is thrilled but will have to discuss it that evening with his “better half,” Jim. Bill immediately withdraws the offer and hires a less-qualified heterosexual man.

Has Bill violated federal law?
pollcode.com free polls

 

Scenario 3. Bill interviews Charlie for a job. Charlie is married (to a woman) and has four kids. However, he’s “thin and neat,” and he speaks with a sibilant “s.” Bill thinks Charlie will catch too much grief from Bill’s “rough” work crew, so he hires a less qualified guy who he thinks is more “manly.”

Has Bill violated federal law?
pollcode.com free polls

 

Scenario 4. Mary has short hair, doesn’t wear makeup or nail polish, and she wears “men’s” pants and flat shoes. The women she works with gossip about her behind her back and play mean jokes on her. The female supervisor sees all of this and thinks it’s funny and harmless.

Might the company be liable under federal law?
pollcode.com free polls

 

Scenario 5. Anne has long, lustrous, beautiful hair, and is perfectly dressed and made up every day, right down to her shell-pink ruffledy chiffon dress and her seven-inch stiletto heels. One day, Anne tells her boss that she and her partner are planning to adopt a baby. While the boss is ecstatically planning Anne’s baby shower, Anne mentions that her partner’s name is Marie. The boss starts writing Anne up for performance issues (all bogus), and eventually fires her.

Might the company be liable under federal law?
pollcode.com free polls

 

Scenario 6. Marsha (formerly Marshall) is a biological male who is going through the gender-reassignment process. Marsha has not had surgery yet, but she’s started hormone treatments and, on the advice of her physician, has begun dressing and living as a woman. Marsha’s supervisor, Staci, fires Marsha for coming to work five minutes late — once — when there was a horrendous accident on the interstate that made everyone else late, too. (No one else is even written up.)

Has Staci put her company in jeopardy under federal law?
pollcode.com free polls

 The answers, with no ENDA, and assuming none of these employers are federal contractors, are 1-D, 2-A, 3-D, 4-C, 5-B, and 6-C.

Huh? Seriously?

Crazy Extremely complex and rapidly transitioning, I know! Title VII prohibits discrimination based on sex but not sexual orientation. However, Title VII does prohibit discrimination based on sex stereotyping. (Why? Because the Supreme Court said so, that’s why.) So if the discrimination or harassment has something to do with stereotyping — in other words, the individual is being picked on because he doesn’t fit the picture of what a “man” should be, or she doesn’t fit the picture of what a “woman” should be, the individual could have a valid federal claim. As in this case.) On the other hand, if the individual is picked on “only” because he or she is perceived as being gay, then there is no valid federal claim.

Of course, many states and local governments have their own laws prohibiting discrimination and harassment based on sexual orientation. In addition, in any state, a person who is harassed because of sexual orientation may (depending on the circumstances) have common-law tort claims for intentional or negligent infliction of emotional distress, assault and battery, or false imprisonment, and one who is fired or “forced” to quit could have a claim for wrongful discharge.  So employers should not think that the lack of a federal law means they can act with impunity.

Robin Shea is presenting at the 2014 Triad Employment Law Update on November14th at the Grandover Resort in Greensboro. In addition to sharing information on gender identify and new protected classes,  attorneys from Constangy, Brooks and Smith, LLP will provide you with the most recent updates in state and federal employment law. Register today at www.capital.org/triadlaw.

 

 

 

Make Time-Off Decisions Together

Thursday, October 2nd, 2014

The following post is by Bruce Clarke, CAI’s CEO and President. The article originally appeared in Bruce’s News and Observer Column, The View from HR.

Bruce Clarke, President and CEO

Bruce Clarke, President and CEO

What could be wrong with time off from work? Plenty, if you are a manager trying to get things done, or an employee who cannot get time off for family issues.

Time-off problems generate phone calls to our HR advisers every day. Most of the problems come in three categories, each with an employee and employer viewpoint.

Do I have to?

Government regulations mandate time off in several dozen ways. No single requirement is back breaking, but their total weight causes employers to dread these regulated requests. The question often becomes, “Do I have to grant the time?” It depends.

Earned vacation is owed to the employee, and the only question is timing. An employer can deny its use at inconvenient times unless the vacation is to be used during a “family and medical leave” event. These FMLA requests give employees and their doctors so much power over timing that employee abuse is common, paid or unpaid. Even if laws like FMLA do not apply, sick day and personal day policies are common. Plus, everyone has a personal need now and then.

Help employees understand the business issues so that time off can be made to fit business and personal needs. Employees, if you will start out showing concern for business needs and some flexibility on timing, you will find the process is much smoother and more pleasant for all. It is rare that something has to happen on Monday morning, or on the busiest day of the month.

Everybody wants to be met halfway. (Emergencies are different.)

Do I want to?

If time off is discretionary, do you want to say “yes” to the employee for an inconvenient day off?

Managers might say “Yes to my best employees and no to my worst.” You can use some discretion, maybe rearranging work so a star can get a day off, but be sure you can defend that choice when the poor performer seeks the same. “Sally works exceptionally hard each day, and you do not” is what you may feel like saying, but refrain. Describe ways the employee can earn future approvals.

Employees who want time off or certain vacation days in this “discretionary zone” should bring a good plan for getting work done, a record of always doing so, or both. I have never met a manager who liked to say “no” to a personal request if it is reasonable and the employee always meets them halfway.

Should I?

Maybe no law requires it, and maybe the employee does not deserve it based on past behavior, but sometimes it is good business to grant that inconvenient time-off request.

You gain nothing by punishing an employee’s family, for example. Maybe you should have dealt with this poor performer more directly last month rather than indirectly punishing him or her through a time-off denial today.

Time-off conversations require adult behavior and open discussion. Approach your next one with that in mind.