Archive for the ‘Compliance’ Category

Sometimes I feel like I am selling fear…

Thursday, August 27th, 2015

The following post is from CAI’s Kevin von der Lippe. He serves as CAI’s private investigator and leads the company’s Background Checking department.

Kevin von der Lippe, Private Investigator

Kevin von der Lippe, Private Investigator

Often, clients hear me talking about the pitfalls of not staying compliant with the nitpicky rules of the federal Fair Credit Reporting Act (FCRA).  Or, they hear me cautioning against transgression of Title VII of the Civil Rights Act of 1964, and how the onerous Equal Employment Opportunity Commission (EEOC) is in their enforcement.  Sometimes I feel like I am selling fear, but the reality is, the litigation is real, the liability for your company is real, and the long term consequences for non-compliance can be devastating to your company.

The view from today’s perspective is that there is a sea of class action lawsuits over small, technical flaws with the paperwork required under the FCRA.  In particular, the two main points of contention are: proper release from your applicant or employee, and sending out the proper paperwork (or even any paperwork) before you make your adverse employment action based upon the background check.

The problem stems from an infamous $22 million settlement on the East Coast in 2008. This particular case showed that suing companies who fail to comply with the FCRA could be lucrative. In 2009, the Sixth Circuit ruled that a plaintiff did not have to show actual damages because the fact that the company failed to comply with the FCRA was in-of-itself an “injury” to the plaintiff, thus giving him justification in filing his suit. [1]

In February 2014, the U.S. Court of Appeals for the Ninth Circuit (in California) ruled that “a plaintiff can suffer a violation of the statutory right without suffering actual damages.” [2] Contrary to rulings from other circuits, this reignited a firestorm and on April 27, 2015, the argument made its way to the nation’s highest court. While the Supreme Court’s decision has not yet been made, the ruling could change Congress’ role in defining how these cases move forward, and perhaps even reduce the number of class action lawsuits that are based solely on technical flaws.

The good news is, you can reduce your exposure under the FCRA by keeping up with the necessary paperwork.  CAI provides samples of the necessary documents on our website, www.capital.org/vea.  We also provide the necessary FCRA paperwork with every report issued by our background checking department.

If you have questions about our background checking services, or how CAI can help you remain in compliance with the federal laws related to background screening, please do not hesitate to contact Kevin W. von der Lippe at (336) 899-1150 or by e-mail at kevin.vonderlippe@capital.org.

Capital Associated Industries Services Corporation is a licensed investigative agency, specializing in corporate pre-employment background screening. Our corporate agency license is BPN 001473P11.

[1] Beaudry v. TeleCheck Services, Inc., (6th Cir. 2009).

[2] Thomas Robins v. Spokeo, Inc. (9th Cir. 2010)

How the Department of Labor’s Overtime Changes Will Affect Your Company

Tuesday, August 18th, 2015

In today’s video blog, CAI’s Senior Executive and HR Advisor, George Ports, discusses the US Department of Labor’s (USDOL) recent proposed changes to overtime regulations and what employers must do in order to remain compliant. George begins by noting that under the new revisions to the Fair Labor Standard Act (FLSA), the USDOL will increase the minimum salary threshold for exemptions, opening up eligibility for overtime protections to nearly 5 million workers nationwide.

George believes it is important for employers to know how these changes will affect their company, and goes on to list the specific revisions to the FLSA. Some of these proposed changes include:

  • A vast increase in the minimum salary level exemption for the executive, administrative, and professional exemptions from $455 per week to no less than $921 per week
  • An increase in the minimum salary exemption for highly compensated employees from $100,000 to $122,148
  • A metrics system to automatically increase the minimum salary threshold test on an annual basis

In order to examine the impact these changes could have, George advises employers to make the necessary alterations to salary levels or re-classify positions. For those employers interested in making comments on these proposed changes, head to www.regulations.gov to make your voices heard. Just make sure to do so before the 60 day comment period ends on September 4, 2015.

Please call our Advice and Resolution team at 919-878-9222 or 336-668-7746 with any related questions.

The Questions You Shouldn’t Ask in an Interview

Tuesday, May 12th, 2015

interview questionsInterviewing candidates can be an enjoyable and sometimes stressful endeavor. This interview or interviews may be the only chance you get to ask all that you want to know about a candidate before you make a hiring decision.

You don’t want to forget to ask something and you do want to ask all of the right things. This could sound alarming to you, or maybe you love interviewing candidates and that is one of the reasons you decided to go into HR. No matter what your view is on interviewing, one thing you don’t want to do is ask questions that could get you and your company into trouble.

That’s right, trouble. There are interview questions that are illegal.  According to a recent survey from Careerbuilder.com*, one in five employers has unknowingly asked a job candidate an illegal interview question. The legality of these questions ultimately protects both parties involved. For you and your future candidates’ protection, take a look at this list of illegal interview questions:

  • What is your religious affiliation?
  • Are you pregnant?
  • What is your political affiliation?
  • What is your race, color or ethnicity?
  • How old are you?
  • Are you disabled?
  • Are you married?
  • Do you have children or plan to?
  • Are you in debt?
  • Do you socially drink or smoke?
  • When do you plan to retire?
  • Where do you live?
  • What was the nature of your military discharge?
  • Are you a U.S. citizen?

You may find that you have asked some of these questions before, or that you need to know these things to make your hiring decisions. You may have wanted to know if someone was ok with relocating so you asked her where she lives. To make sure you are protected, ask her instead flat out if she is willing to relocate. Or ask a candidate where he sees himself in fifteen years instead of when he is planning on retiring.

Think through interview questions before asking them, and make sure you aren’t breaking any laws!

For more information of the legalities of interviews and interview questions, contact a member of CAI’s Advice and Resolution Team at 919-878-9222 or 336-668-7746.

*Careerbuilder.com

Photo Source: COD Newsroom

Summer Planning for Youth Employment

Tuesday, May 5th, 2015
Pat Rountree, HR Advisor

Pat Rountree, HR Advisor

Summer is on its way, and in today’s post, CAI’s Advice and Resolution team member Pat Rountree shares critical information about summer employment opportunities for teens and young adults.

Applications for summer employment are likely already arriving as the school year draws to an end. Now is a good time to review things you need to know to be in compliance with laws affecting youth employment.

Wage and Hour Laws

Non-Agricultural

North Carolina and federal law have limitations on hours and occupations for employees under age 18 applicable to non-agricultural employers. Where North Carolina employers are also subject to the Fair Labor Standards Act (FLSA), the laws that offer the most protection to minors are applicable.

Youth under 18 may not work in any occupations determined to be hazardous or detrimental. (See http://j.mp/NC-HAZ and http://j.mp/NC-DET.)

During non-school weeks, there are no restrictions on hours for youth 16 and over. If they are attending school, they may not work during the hours of 11:00 pm to 5:00 am if they have school the next day unless waived in writing by a parent or principal.

Minors age 14 and 15 may not work in any manufacturing job and are limited to eight hours per day, 40 hours per week between the hours of 7:00 am and 7:00 pm (7:00 am to 9:00 pm from June 1 to Labor Day) during non-school weeks. They must also be given a 30 minute break after working five hours. For more detailed information on restrictions for youth age 14 and 15, go to http://j.mp/Y-15.

Children of business owners may work for their parents in their business any hours, but not in hazardous or detrimental occupations as noted above.

Agricultural/Farm Jobs

North Carolina does not regulate youth employment in agriculture. For the applicable federal law, go to http://j.mp/j-ag.

Youth Certificate Required

All youth under age 18 working in North Carolina must obtain a youth certificate (worker’s permit) and submit it to the employer prior to starting work. See http://bit.ly/ncdol-y. These must be retained for at least two years after employment ends or until the employee reaches age 20.

Agricultural Occupations

The North Carolina youth employment provisions do not apply to farm work.

Drug Testing and Background Checks

Attorneys recommend having the parent sign the consent for pre-employment drug testing or post-offer background checks if these are required contingencies. However, the results should be released to the minor and not the parent(s).

Completing the Form I-9

If the minor has documents to satisfy I-9 requirements, they may complete Section 1 and present documents.

If the minor cannot present documentation of proof of identity and authorization to work, the parent may complete Section 1 on behalf of the minor. (See http://j.mp/I9-m.)

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

New Legislation Activity Will Affect NC Employers

Tuesday, April 14th, 2015

George Ports, CAI’s Senior Executive and HR Advisor shares important legislation updates for NC employers in today’s post.

George Ports, Senior Executive and HR Advisor

George Ports, Senior Executive and HR Advisor

The 2015 Session of the North Carolina General Assembly officially convened on January 28, 2015.  As we expected, there has been a lot of activity pertaining to legislation introduced affecting day-to-day workplace issues, legislation that I will be covering at CAI’s 2015 Employment and Labor Law Update in May.

Bills introduced in the House and in the Senate aim to make changes to North Carolina’s unemployment laws.  Some of these changes such as requiring a photo ID to receive benefits, requiring more weekly attempts by claimants to obtain employment and authorizing the NCDMV to release social security numbers to the NCDES to prevent fraud were contained in legislation passed in the 2014 Session but vetoed by Governor McCrory.

Other legislation addresses criminal record expunction laws, one bill places restrictions on credit history checks for applicants, and another provides NC Industrial Commission fraud investigators more authority (investigators would be sworn law enforce officers with arrest powers).  Oh yes, and there is a bill that attempts to revise North Carolina’s E-verify law, increasing the number of employers required to use e-verify (employers from 25 or more employees to employers with 5 or more employees).

For many years “employee misclassification” has been a Hot Button for USDOL’s Wage & Hour Division—is the individual providing services to an employer an employee or an independent contractor?  This misclassification issue has garnered quite a bit of attention from North Carolina regulatory agencies and legislators.  Employers don’t pay payroll taxes or unemployment taxes on independent contractors nor are independent contractors covered by employers’ workers compensation insurance.  Independent contractors therefore are not eligible for unemployment or workers’ compensation benefits.

As this article is being written, there are at least four bills that have been introduced in attempts to address “employee misclassification.”  All four have their own definitions of employee and independent contractor.  Two bills are similar in their definitions and that they allow employers a “second bite of the apple” before penalties are imposed.  There is one bill’s definition of an independent contractor, however, it is quite narrow and its penalties for misclassifying an employee as an independent contractor are severe.  Civil penalties can range from $500 to $4000 per violation.  The amount of the penalty will be determined by “the size of the business of the person charged and the gravity of the violation”.  This legislation also contains a provision giving regulatory agencies the authority to issue a stop work order, in other words, shut down business operations. 

During my presentation, I’ll be giving status updates on each bill, stating whether they’ve passed and providing insights as to the probability of them passing or not.  We at CAI look forward to hosting our annual Employment and Labor Law Update on May 14th and 15th at the McKimmon Center in Raleigh.

The Employers Coalition of North Carolina (ECNC) was created to give the business community a more focused avenue of public policy input concerning day to day employer-employee workplace issues. ECNC is a partnership of three North Carolina employers’ associations: CAI (Capital Associated Industries), TEA (The Employers Association) and WCI (Western Carolina Industries) and their 2500 members.

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!