Posts Tagged ‘Compliance’

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

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!

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!

NC Unemployment Law—What You Need to Know About Attached Claims

Tuesday, September 10th, 2013

In today’s post, George Ports, CAI’s Senior Executive in Government Relations and Senior Advisor on CAI’s Advice and Counsel Team, shares pertinent information about North Carolina’s new unemployment law that deals with attached claims. Check out part 1 of the article below.

George PortsNorth Carolina’s new unemployment law was passed in the 2013 Session of the North Carolina General Assembly.  The new law (H4) was necessary to repay the $2.8 billion dollar unemployment debt owed to the federal government.  The interest alone on this debt for 2012 was $84 million.  Although necessary, the new law created pain points for employers and employees.  One of the primary pain points is the restrictive provisions placed on the use of “attached claims”. “Attached claims” are filed by employers for employees during periods of short work weeks (less than 60% of employees’ regularly scheduled work week) and temporary reductions in force. These restrictions coupled with the new requirement that each unemployment claim requires a one week waiting period have caused employers to review their “attached claims” strategies for future down turns in work.

The following information includes highlights of the new regulation:

New “Attached Claims” Regulations

Effective June 30th, 2013

Attached claims may be filed by an employer for employees if the employer has a positive credit balance.  If the employer does not have a positive credit balance the employer must make payment to the DES (Division of Employment Security) to bring the balance up to zero.  Other attached claims provisions are as follows:

  • Attached claims are limited to one time per employee per benefit year.
  • The duration of attached claims is limited to six consecutive weeks.
  • The employer must submit payment to the DES in an amount that will cover the cost for attached claims when claims are filed.
  • Claims filed prior to June 30th establish a WBA (weekly benefit amount) subject to the maximum WBA of $535.  If the WBA is established and subsequent claims are filed after June 30th, claims will be paid subject to that maximum, however, all other provisions of the new law are in effect including a one week waiting period for each claim filed (even though a week’s waiting period was satisfied prior to June 30th) and the six week limited duration.
  • Claims filed on or after June 30th are subject to all provisions of the new law including the new maximum WBA of $350.

Come back for part 2 of the article this Thursday, September 12. George will give procedures for filing attached claims and recommendations/options regarding how to manage them. The information is intended to assist employers as they revisit their “attached claims” strategies.

3 Things Employers Need to Know About the NLRA

Tuesday, April 16th, 2013

NLRAHow familiar are you with the National Labor Relations Act (NLRA)? Do you have enough knowledge of the act to guarantee that your organization won’t make costly mistakes regarding your employees?  

According to nlrb.gov, the NLRA was enacted by congress in 1935 “…to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices…” Keeping up with the decisions based on interpretations of the act can be challenging. However, all employers should be familiar with the NLRA and know how related rulings affect their organization.

Here are three things all employers should know about the NLRA:

Not Just for Unions

Think the NLRA won’t affect you because there are no unions at your organization? Wrong! The NLRA is applicable to most private and non-profit employers whether they have a union presence or not (there are some exceptions). Because the NLRA affects most companies, it’s important to be aware of the most recent rulings dealing with the act.

The NLRB

The National Labor Relations Board (NLRB) enforces the NLRA. Five members, appointed by presidents, make up the board. Their jobs are to review the unfair labor practices they receive from unions or employers, and make decisions or rulings on the cases they investigate. The board analyzes the NLRA to determine its decisions. Though the group can’t change the elements in the NLRA, it can change how the law is interpreted and used.

Decisions from the Board are Law

Rulings made by the board have the effect of law, and board decisions can change often. Past rulings do not set precedents as they do in actual courts of law, so reverse rulings of decisions made by previous boards are not uncommon. For employers, this means that employment and labor law constantly changes.

Make sure your organization stays informed to avoid actions that may violate federal or state laws. Brian Hayes, former NLRB member and current Ogletree Deakins attorney, will present at this year’s Employment and Labor Law Update conference. During his sessions, he will share his views and give advice on the board’s recent rulings.

Please visit www.capital.org/lawupdate to review the full agenda of the conference, descriptions about the presentations and to register. Feel free to call 919-878-9222 or 336-668-7746 with any questions.

Photo Source: Kheel Center, Cornell University

OFCCP Releases New Compensation Directive for Government Contractors

Tuesday, April 2nd, 2013

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares the latest updates from the OFCCP. Make sure you are compliant.

Kaleigh blogEffective February 28, 2013, the Office of Federal Contract Compliance Programs (OFCCP) officially rescinded their previous guidelines on compensation. This rescission comes as no surprise since they had published in January 2011 a Notice of Proposed Rescission. The OFCCP stated the previous guidelines were too limiting and “constrained OFCCP’s ability to investigate pay discrimination to the full extent permitted by law.” These previous guidelines also conflicted with other government agencies’ investigated pay discrepancies.

The OFCCP replaced the rescinded guidelines with Directive 307, which is supposed to provide contractors clear insight into how the OFCCP will conduct compensation reviews during audits. However, this “clear guidance” doesn’t really live up to this billing. What it actually does is list multiple protocols and factors the OFCCP may use during a compensation review. The OFCCP makes it clear they may use any number of these methodologies during audits and they will be determined on a case-by-case basis. This of course, gives the OFCCP a great deal of flexibility during investigations and makes it extremely difficult for contractors to determine if they are “compliant” based on the OFCCP’s methods.

The consequence of this new Directive is that it affects contractors’ compensation policies/procedures and data at both the macro and micro levels. Employers must be able to address how their practices influence compensation, as well as prepare for specific individual analysis. The changes to the compensation review procedures have the potential to cause companies additional angst during audits.

The following is a high level overview of some of the changes and the issues they may cause employers:

  • There are eight possible “steps” to be taken when conducting the compensation portion of an OFCCP audit and potentially additional consideration factors within the steps.
    • It is unclear which “step” the OFCCP will actually use during an investigation and/or the progression through any and all of these steps. The OFCCP also may change direction at any point during their review.
  • The OFCCP has indicated that several of their analyses will be conducted by broad groupings of employees and not just at the position title level.
    • With wide groupings such as pay grades, AAP job groups or pay analysis groupings being used for analysis, there is a greater opportunity for pay discrepancies to be identified during the OFCCP’s investigation.
  • Any documentation regarding company policies or practices that may be related to compensation may be called into question during the OFCCP’s review. Examples include but are not limited to performance systems, commission, overtime hours, training, etc.
    • This more detailed review of company practices will likely cause OFCCP to uncover issues with inconsistent pay practices as well as other employment policies.
  • Regardless of findings and whether or not an issue is identified during previous “steps” or reviews, the OFCCP has indicated they may continue their investigation into contractors’ compensation.
    • This seems to indicate that OFCCP audits will be comprehensive and involve many steps and reviews and will likely be a long and drawn-out (and potentially expensive) process.

The Directive seems to serve as an indication that the compensation reviews conducted by the OFCCP will cause many challenges among the contractor community, especially initially. To review Directive 307 in its entirety, visit http://j.mp/pd-gc.

If you would like to discuss these new guidelines in detail and the potential impact on your organization, please contact me directly at 919‑713‑5241 or kaleigh.ferraro@capital.org. CAI provides AAP plan preparation, OFCCP audit assistance, onsite training and webinars for hundreds of companies each year. We are happy to share our expertise with you!

 

Are You Aware of the Regulatory and Legal Changes Affecting N.C. Employers in 2013?

Thursday, March 21st, 2013

2013ELLU-Flash 2012 brought a number of federal and state employment law changes that will affect North Carolina employers this year. Agencies, such as the U.S. Immigration and Customs Enforcement (ICE) and the U.S. Department of Labor (USDOL), are giving employers more challenges by increasing their scrutiny on compliance. North Carolina also has restructured its unemployment insurance system to deal with the state’s federal debt, as well as make the NC Division of Employment Security (DES) more efficient.

Please join us for the 2013 Employment and Labor Law Update at Raleigh’s McKimmon Center on May 22 and May 23. The experienced attorneys of Ogletree Deakins will update you on the latest developments and inform you on what they mean to N.C. employers and how they will specifically affect your organization.

Ogletree Deakins’ knowledgeable attorneys will cover several topics pertinent to employers, including:

 

NLRB

Workplace Violence Prevention

Employee Handbooks

N.C. Legislature

ICE

E-Verify

Healthcare Reform

ADAAA

Challenges with New Technology

Compensation Systems

USDOL

FLSA

Unemployment Insurance Reform

Affordable Care Act

EEOC

Whistleblower Claims

 

Brian Hayes, former NLRB member and voice of management on the board for more than two years, will present at this year’s conference. Brian’s term on the NLRB Board may have ended in December 2012, but he’ll share his view on the board’s recent rulings and help you prepare for the new challenges facing employers. Conference favorite Dennis Davis also will share with attendees a special presentation on preventing workplace violence.

If you want to understand how the latest developments in state and federal employment laws and regulations affect your organization, attend this conference. In addition to all the compliance information you’ll receive, you’ll have a number of opportunities to network with leading employment law attorneys and more than 350 HR executives and company leaders.

Please visit www.capital.org/lawupdate to review the event’s full agenda, descriptions about the presentations and to register. Feel free to call 919-878-9222 or 336-668-7746 with any questions.

5 Updates to North Carolina’s Unemployment System You Need to Know

Tuesday, March 12th, 2013

George PortsCAI’s Senior HR Advisor and Government Relations Specialist George Ports explains the five major changes to North Carolina’s Unemployment System now that Governor Pat McCrory signed House Bill 4, UI Fund Solvency & Program Changes on February 19, 2013.

House Bill 4, UI Fund Solvency & Program Changes was drafted in efforts to address the $2.8 billion debt owed to the federal government and to improve efficiency at the North Carolina Division of Employment Security (DES).

Highlights of the five changes to North Carolina’s Unemployment System are:

  • Near elimination of “attached claims”
  • Elimination of “Substantial Fault”
  • Higher taxes at the state and federal levels
  • Elimination of most “good cause” reasons
  • Reductions in benefit amounts and duration

The effective date for most of these changes is July 1st, 2013 with the exception of new employer contribution rates, which will be effective January 1st, 2014

Let’s breakdown the three changes that are receiving most of the attention: reduction in benefit amounts, reduction in the duration of benefits and near elimination of “attached claims”

Reduction in benefit amounts

Currently the maximum weekly unemployment benefit is $535.00.  This maximum benefit, under current law, is indexed annually based upon North Carolina’s average weekly insured wage (AWIW).  So if the AWIW increases, so does the maximum weekly benefit.  The new law’s purpose in reducing the weekly benefit to $350.00 is to bring North Carolina’s maximum weekly unemployment benefit in line with neighbor states that are as follows:

  • Florida –$275       
  • Georgia–$330
  • South Carolina–$326
  • Tennessee–$275
  • Virginia–$378

In addition to the reduction in benefits, the maximum weekly will no longer be indexed annually; adjustments will require legislative action by the North Carolina General Assembly.

Reduction in duration of benefits

Under current North Carolina law, the maximum duration of benefits is 13 to 26 weeks based upon an individual’s work history.  The new law provides that benefit duration is based upon a sliding scale determined by unemployment rates and an individual’s work history.  An example of this sliding scale is as follows:

UI Rate is 5.5%:  12 weeks max. (5-12)

UI Rate is 9.5%:  20 weeks max. (13-20)

Each calendar year there will be two unemployment rates that will affect duration.  One of the rates will be announced in January by the Bureau of Labor Statistics (BLS).  The BLS, although a federal agency, announces the unemployment rate reported by North Carolina. This rate is actually the rate from the previous October.  The second rate will be announced by the BLS July 1st (North Carolina’s rate from the previous April).  In other words, if a claimant files in March the duration would be determined by the January rate.  If a claimant files in September the duration of benefits would be determined by the rate announced in July.

Near Elimination of “attached claims”

Employers are currently able to file attached claims for employees to receive UI benefits during periods of work slowdowns or temporary layoffs.  If the employer provides less than 60% of an employee’s regularly scheduled workweek, attached claims are filed and employees are not separated from the company.

The new law, for the most part, repeals the use of “attached claims” with some exceptions.  The attached claims provision will be available if the employer has a positive credit balance and submits payment to cover cost of benefits.  The payments are to be made at the time the claims are filed and will be credited to the employer’s account.  The logic here is to ensure that the employer’s account does not go into a negative balance.  This provision is limited to one time per employee per calendar year for a maximum of six weeks (Employers with a debit balance can utilize as above if they make an additional payment that would bring their account to at least zero).

CAI/ECNC (Employers Coalition for North Carolina) helped to fund an independent study conducted by a national organization specializing in unemployment and workers’ compensation system. Recommendations from the study were based on an analysis of North Carolina’s current debt/system issues and comparisons with other state systems. CAI/ECNC voiced concerns regarding the total repeal of the “attached claims” provision, which resulted in the limited exceptions included in the legislation as noted above. One of the main sponsors of House Bill 4 testified in a legislative committee that benefits paid out for “attached claims” accounted for nearly half of North Carolina’s $2.8 debt to the federal government.

This new law has pain points for both claimants and employers.  However, the passage of the legislation was necessary to pay off the $2.8 billion unemployment debt owed to the federal government, bringing solvency back and repairing North Carolina’s broken Unemployment System. 

The Employers Coalition of North Carolina (ECNC) is committed to improving the business climate of North Carolina through political advocacy at the legislative and administrative levels of government. For more information about ECNC, please visit www.ecnc.us.

 

Defining a Full-Time Employee

Tuesday, February 26th, 2013

The post below is a guest blog from Steve Byrd who serves as Principal, Health & Welfare Consultant  for CAI’s employee benefits partner, HCW Employee Benefit Services.

HCW 2 26 2013Under the Patient Protection and Affordable Care Act (PPACA), employers with more than 50 full-time equivalent employees will have to provide affordable benefits to all full-time employees who work 30 or more hours a week by 2014. Failure to do so can result in an assessment of $2,000 per year for each full-time employee, excluding the first 30 full-time employees.

What exactly qualifies as a “full-time employee working 30 hours a week” under federal guidelines? While the IRS has issued Notices 2011-36 and 2011-73 that easily clarify the Employer Mandate for most cases, employees working variable hours present a special challenge.

 Variable Hour Employees

The IRS Notice 2012-58 says employers can determine plan eligibility for new and ongoing variable hour employees this way:

1) Choose an initial measurement period between three and 12 months to average employee work hours.

2) If a new variable-hour employee averages 30 or more hours per week during this initial measurement period, then you have 30 to 90 days to offer and enroll the individual on the medical plan.

3) For those working less than 30 hours on average, benefits do not need to be offered, but the position must be measured periodically for redetermination.

These regulations include other employer options with time frame selections for measuring which employees qualify as full-time ones.

Whatever criteria is chosen, employers with 50 or more full-time equivalent employees will need to closely and consistently track the various measurement periods. Those same companies with employees working less than 30 hours a week will need to reassess their procedures around these positions while staying within compliance of PPACA requirements starting in 2014 and monitoring whether the status of those employees need to be reclassified due to changing circumstances.

What Should Large Employers Do?

As it is expected that the majority of employers with 50 or more full-time employees will continue to offer benefits to recruit and retain top talent.  To stay competitive and in compliance with PPACA, you should:

1) Evaluate the level of benefits you are providing and see if they remain financially feasible.

2) Understand the new markets created by the healthcare exchanges.

3) Reorient your employees toward more prudent usage of your programs. 

4) Establish an effective and efficient system that avoids time-consuming paperwork to keep track of classifications.

The latter system can vary given your operation’s scope, number of employees and individuals who are involved in monitoring this item.

To learn how to set up processes that work best for measuring and following the qualifications for full-time employees, contact Hill, Chesson & Woody at info@hcwbenefits.com. Additionally, we have several healthcare reform webinars available on-demand on our website to assist you in understanding the provisions and how they impact employers.

Employers, Use Caution When Dealing with Unpredictable FMLA Leave

Thursday, February 21st, 2013

FMLA leaveThe Family and Medical Leave Act (FMLA) is a topic on which many HR professionals are knowledgeable. Preparing for a situation that requires an employee to take FMLA leave isn’t a major problem if the time off was scheduled in advanced.

Robin Shea, attorney for Constangy, Brooks & Smith and writer of the Employment and Labor Insider blog, suggests that problems occur when an employee who’s in a critical-but-inflexible position (like a customer service representative) needs intermittent leave under the FMLA unexpectedly.

In her article, Employer’s Bane: Unpredictable FMLA leave. Is there a solution?, Robin empathizes with employers on the implications that unexpected leave can have on their business. She writes:

Where the absences are unpredictable, it’s impossible for the employer to plan, and because the employee’s position is critical, there is no way to “let things slide” until the employee is able to come back.

She acknowledges that dealing with intermittent FMLA leave is no walk in the park. However, Robin cautions employers from executing solutions that yield bad results like a lawsuit. She uses the example below to inform employers of the consequence of mishandling FMLA leave:

One seemingly logical solution to this problem is to say to the employee, “Look, we recognize your need for FMLA leave, but we really can’t handle frequent unpredictable absences in your position. So here’s what we’ll do. We will temporarily reassign you to another position that better accommodates recurring periods of leave. We’ll leave your pay and benefits unchanged. Then, when you’re able to come back to your old job and attend on a regular, predictable basis, we’ll put you back in that position.”

 “Sounds great — thank you! What’s the new job?” (employee)

 “Uh, men’s room attendant. It’s a non-essential position, so it will be immaterial to us whether you ever show up for work or not.”

 This rubs employee the wrong way, especially since she’s a woman. Employee goes to U.S. Department of Labor and files a complaint. You lose, because the “temporary reassignment” option applies only if the leave is foreseeable.

After revealing another failed attempt to deal with this HR headache, Robin points out that there isn’t much employers can do to protect themselves.

When Robin has a client that is in desperate need for a solution, she suggests “requiring the employee to take “block” leave but counting only the “necessary” time against the employee’s 12-week FMLA entitlement. Any other time can be covered by PTO or short-term disability or workers’ comp, or just regular pay, and it cannot be counted against the employee for FMLA or attendance purposes.”

She also says that employees have the option to “tough it out” and grant the employee time off on the terms in which he or she suggests. Robin acknowledges that these aren’t good options and ends her article by saying, An employer should be able to keep its business running when an employee has to miss a significant amount of work on an unpredictable basis. I wish the DOL would provide employers with some workable solutions that are legal. But I’m not going to hold my breath.”

What are your thoughts on this tricky HR issue?

Photo Source: Muffet