Posts Tagged ‘ADAAA’

7 Takeaways from the 2012 Triad Employment Law Update

Thursday, November 15th, 2012

Last Wednesday, Nov. 7, CAI hosted its annual Triad Employment Law Update at the Koury Center in Greensboro. More than 160 HR professionals and company executives attended the conference to receive the latest updates in state and federal employment law.

Lawyers from Constangy, Brooks & Smith, LLP shared presentations with attendees on a number of topics related to recent changes in regulations. Some of the topics covered included updates from the new NLRB, best practices for immigration law compliance and changes from healthcare reform.

Below are seven key insights from the informative law update:

NLRB (National Labor Relations Board) Social Media Policy

  • Employees using social media to complain about their employers may be engaged in protected concerted activity under NLRA
      • Protected posts: seeking advice from coworkers, calling supervisors names, criticizing company actions
      • Unprotected posts: don’t involve other employees or individual gripes, criticizing the company’s clients and complaints to third parties
  • The board continues to offer policy guidance on a variety of social media cases

EEOC (Equal Employment Opportunity Commission) Issues Final ADAAA (American’s with Disabilities Amendments Act) Regulations

  • Eliminated “per se” list of covered disabilities
  • Rejects minimum duration rule that results in short term condition being a disability

New EEOC Regulation on Age Discrimination

  • November 16, 2011—EEOC approves final regulation
    • Now easier for plaintiffs to prove age discrimination in disparate impact cases
    • Facially neutral practices that adversely impact older employees is discriminatory unless employer can prove “reasonable factor other than age”

OFCCP (Office of Federal Contract Compliance Programs) and Proposed Rule on Hiring Goals for Disabled

  • Proposed rule requires federal contractors to set a goal that 7 percent of each job group should be persons with disabilities
    • Require applicants to self-identify as disabled

Correct Your I-9s

  • In general, never do a new I-9,  no matter how bad the errors
    • Common errors that can be fixed: employee didn’t sign, employee didn’t date, employee didn’t fill in “A” number, employee didn’t fill in expiration date, employer didn’t fill in date of hire, employer didn’t fill in street address of company
    • Errors that can’t be fixed: not completing form within three days of hire and missing information from former employees

Avoiding Whistleblower and Retaliation Claims

  • Whistleblower: employer violation of law, rule or regulation
  • Retaliation: related to employee’s individual rights
  • The following are protected from retaliation:
    • current employees, former employees, job applicants and associates of those employees who engage in  protected activity
  • Three elements make up a claim:
    • Protected activity, adverse action and causal connection
    • Employee must have a good faith belief that there was a violation of a law when they engaged in protected activity (Title VII)

Effects of Healthcare Reform

  • Several mandates and changes become effective
    • Implementing external review processes
    • W-2 reporting of the value of employer provided health benefits
    • Summary of Benefits and Coverage (SBC) to be given to all participants at enrollment and at each subsequent annual open enrollment
    • Automatic enrollment for employers with more than 200 full-time employees will be required for new full-time employees, with an opt-out notice
    • Health flexible spending account limit will be $2,500

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

4 Things Employers Should Know About the ADAAA

Tuesday, April 17th, 2012

Congress passed the Americans with Disabilities Act Amendments Act  (ADAAA) in 2008 with the intent to focus trials on whether discrimination occurred instead of whether an impairment is a disability under the Americans with Disabilities Act (ADA). With the burden of proof now shifted to the employer, it is important for HR departments to be aware of and up to date with the act’s revisions. Knowing the details of the ADAAA will help your organization stay compliant with the law and avoid a lawsuit and accompanying fees.

Here are four things you should know about this act—

1. The definition of a disability is broader.

The original ADA stated that a disability was anything that substantially limits a major life activity. Now that the list of “major life” activities has expanded, more employees are covered under the revised act and can potentially claim a disability.

2. Mitigating factors do not determine whether an employee has a disability.

Under the ADAAA, mitigating measures, which can reduce or eliminate a disability’s effect can’t be considered when an employer or a court is determining whether an employee has a protected disability. Eye glasses are the one exception to this rule.

3. The definition of “reasonable accommodation” is unchanged.

The act clarifies that only individuals who have an impairment that limits a major life activity and a record of the impairment are eligible to receive reasonable accommodation. It is important to note that employers have flexibility under this section of the act. They are not required to fulfill the employee’s exact request if suitable alternatives are available.

4. Documenting is your best protection.

As with most human resources situations, documenting all steps in your process is key to protecting yourself against an unfavorable lawsuit outcome. Before making any reasonable accommodations for your employees, you should request from them documentation by a medical professional affirming their disability. Document all the steps you take in ensuring that your company is doing its best to accommodate employees without undue hardship on its end.

With the ADAAA in full effect, employers should review their handbook policies regarding disabilities and requesting reasonable accommodation. Your company’s employee handbook should include the new definition of a disability. Training your managers with direct reports on how to adequately respond to disability mentions and accommodation requests will also help you stay out of the courthouse.

Labor and employment lawyers from Ogletree Deakins will discuss the ADAAA in more detail at CAI’s 2012 Employment and Labor Law Update on May 2 and May 3. In addition to a review of the ADAAA, conference presenters will give participants updates on the most recent news and changes in state and federal employment laws. Additional topics include: workers’ compensation, healthcare reform, FLSA exemptions and more. Register for the conference today: www.capital.org/lawupdate.

Photo Source: Leo Reynolds

Don’t Make These 4 Common Mistakes When Filling Out an I-9

Tuesday, March 27th, 2012

The I-9 form can be a tricky document for employers. The government has created specific rules that must be followed when completing the deceivingly simple document. Your organization may be penalized and fined if the regulating agency discovers incorrect information or mistakes in your employees’ I-9 forms. To stay compliant with state and federal regulations, avoid these common I-9 mistakes:

1.  Does Everyone Have an I-9 Form on File?

Your organization should have a correctly completed I-9 form for every employee. Making sure that you do is important to stay in compliance. If the U.S. Immigration and Customs Enforcement (ICE) agency conducts an audit or investigation and learns that you’re missing forms for any of your employees, you will most likely be fined.

2.  Missing and Misplaced Information

Missing and misplaced information are mistakes that can easily be avoided if you and your employees spend adequate time filling out the documents and reviewing for errors. Here are some examples of information that is frequently misplaced or left out: wrong date, no signatures and information in incorrect boxes.

3.  Not Following the Three-Day Rule

You are required to complete a new hire’s I-9 form within three days of his first day of paid work. After an applicant has been offered and has accepted the job, ensure the new employee is aware of the types of acceptable identifying documents they may choose to provide to accurately fill out their I-9 forms. Helping your employees prepare for their first day of work will help you steer clear of potential fines.

4.  Incorrect Corrections

If there is incorrect information on an I-9 form, do not use a marker to cross out the information. Using white out is another mistake that employers often make when trying to correct information. Failing to initial and date corrections will also make an employee’s I-9 form erroneous. If these mistakes are made and the document lacks clarity or is not easy to follow, filling out a new form is appropriate. Make sure the original document is attached to the new one. Never backdate changes.

For more information on staying compliant with state and federal regulations, please join us on May 2nd and 3rd at the McKimmon Center in Raleigh for the 2012 Employment and Labor Law Update. The conference will feature experienced lawyers from Ogletree Deakins who will update you on the most recent regulatory and legal changes affecting employers. Some of the topics they’ll discuss include the ADAAA, Workers’ Compensation and Healthcare Reform. You can register for the event and see the additional topics here: www.capital.org/lawupdate.

Photo Source: Victor1558