Posts Tagged ‘NC Legislation’

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.

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

Thursday, May 22nd, 2014

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

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

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

Expect more aggressive investigative tactics from the EEOC:

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

Enforcement Trends in Immigration Law:

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    • Using a wrong or outdated I-9 form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

Updates in the ADA:

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

Updates in NC Legislation—Bills of Interest:

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

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

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

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