Posts Tagged ‘Ogletree Deakins’

7 Things You Should Know From the 2013 Employment and Labor Law Update

Thursday, June 6th, 2013

2013ELLU-FlashCAI hosted its annual Employment and Labor Law Update at Raleigh’s McKimmon Center on May 22 and May 23. More than 430 people attended the conference to hear the latest updates in state and federal law.

Attorneys from Ogletree Deakins imparted important information to conference attendees about issues currently facing employers. Some of the topics included health care reform, unemployment insurance reform, North Carolina legislative updates, and wage and hour audits.

Below is a list of some of the pertinent information shared at the conference that company leaders should know:

Health Care Reform

1) The “pay or play” mandate of the Affordable Care Act  applies to “Applicable Large Employers”

  • An “Applicable Large Employer” is an employer with 50 or more full-time employees
  • “Employer” includes all entitles within the same controlled group of entities, including parent-subsidiary relationships and brother-sister relationships.

2) According to the “pay or play” mandate of the Affordable Care Act, Applicable Large Employers can choose to:

  • “Pay” by not offering coverage to all of their full-time employees and their dependents  OR
  • “Play” by offering coverage to their full-time employees and their dependents

3) Penalties Associated with the “pay or play” mandate include:

  • “’No Coverage‘ penalty”: Employer fails to offer coverage to all full-time employees and their dependents AND one or more full-time employees purchases coverage through the Exchange AND is eligible for premium tax credit or subsidy
    • § Penalty is $2,000 per full-time employee excluding the first 30 full-time employees
  • Employers that choose to “play” can still be subject to a penalty if they offer “Inadequate Coverage.” For example:
    • § Employer offers coverage to all of its full-time employees and their dependents but that coverage is NOT “affordable” OR does not provide “minimum value”
    • § Any full-time employee purchases coverage through the Exchange and receives a subsidy or tax credit

Complying with the Americans with Disabilities Act (ADA)

4) The ADA prohibits discrimination against qualified individuals with a disability, and it requires employers to make reasonable accommodations for disabled individuals where no undue hardship results for the employer.

5) Employee must be a qualified individual with a disability, meaning:

  • Must meet qualification standards for position
  • The individual must be qualified to perform the essential functions of the job with or without reasonable accommodation
  • Employers do not need to eliminate essential job functions

Workplace Violence

6) Workplace violence is any act of aggression, or threat of an act, that threatens the safety, security, or well-being of an individual who is at work or on duty.

  • One in six violent crimes occurs at work, including 7 percent of all rapes, 8 percent of all robberies and 16 percent of all assaults

7)  Workplace bullying is defined as repeated infliction of intentional, malicious, and abusive conduct that interferes with a person’s ability to do his/her work and is substantial enough to cause physical or psychological harm and a reasonable person would find hostile or offensive.

  • There is a strong correlation between bullying and violence
  • 43 percent of bullying comes from coworkers
  • 25 percent of bullying targets have protected status (other than gender)
  • 80 percent of bullying targets are women

If you are interested in attending CAI’s next Employment and Labor Law Update in 2014, please contact an Account Manager at 919-878-9222 or 336-668-7746.

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

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.

Best Practices for Getting Your Workplace Investigation off to a Good Start

Thursday, May 31st, 2012

During CAI’s 2012 Employment and Labor Law Update, attorney Bob Sar from the Ogletree Deakins law firm recommended several best practices for conducting successful workplace investigations. To minimize retaliation risks from related investigations, Bob lists three actions that organizations can take to protect themselves:

  • Establish a strong anti-retaliation policy
  • Develop a standard interview process
  • Document employee performance regularly

Bob shared with conference participants the four ultimate goals of a workplace investigation:

  • To determine if a problem exists
  • To protect the company
  • To provide an opportunity to demonstrate fairness
  • To encourage internal dispute resolution and reporting of problems

Employers should investigate all employee complaints, even if the complaining employee doesn’t want an investigation started. Bob advises employers to also investigate off-the-record complaints and never promise employees absolute confidentiality during the course of an investigation.

Once you have cause to investigate a workplace complaint, follow these three steps to start an effective investigation:

1. Determine if it’s necessary to implement immediate action on parties currently involved or soon-to-be involved.

  • Examples include suspension, separating employees, sending a status report to company leaders.

2. Select the best candidate to be the investigator.

  • Consider the following factors when choosing an appropriate candidate: how is his or her demeanor? Is this person empathetic? Does gender matter in regard to the complaint? Can he or she be impartial?

3. Review all documentation related to the complaining employee, the accuser and the actual complaint.

  • Consistent documentation is key for an effective investigation. Collect information from several sources, including employee personnel files, company policies and handbooks, and past complaint files. Reviewing emails and electronic files are helpful to the investigation as well.

Once you’ve selected your investigator, alerted people who should know about the investigation and collected necessary documents, you can proceed with employee interviews with the victim, the accused and witnesses to determine the outcome of the complaint.

For additional information and tips for conducting workplace investigations, please contact a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

Photo Source: Nina Matthews Photography

6 Things to Know about the NLRB’s Notification of Employee Rights from the 2012 Employment and Labor Law Update

Tuesday, May 15th, 2012

On May 2 and May 3 CAI hosted its annual Employment and Labor Law Update at the McKimmon Center in Raleigh. More than 390 HR professionals and company executives participated in the two-day event. Experienced lawyers from Ogletree Deakins updated the audience on the most recent developments in state and federal employment law and how they affect North Carolina employers. Topics discussed at the conference included the ADAAA, conducting investigations, healthcare reform, E-Verify and more.

Participants were concerned and surprised by some of the recent changes from the NLRB, which attorney John Burgin shared. Burgin explained that the recess board under President Obama’s administration currently has a 3-2 pro-union majority, and the board’s effects are shaping how employers and employees can interact with each other. Here are six things you need to know about the NLRB and its Notification of Employee Rights:

1.       Notification of Employee Rights              

  1. Originally effective November 14, 2011 but implementation was delayed indefinitely by U.S. Court of Appeals on April 17, 2012
  2. The National Labor Relations Act (NLRA) requires most private employers to post employees’ rights
  3. All employers under jurisdiction of the NLRB are included, but the act excludes government, agricultural, railroad and airline employers
  4. Ruling applies to employers of unionized and non-unionized workforces

2.       Foreign Language Notice

  1. Where 20 percent or more of a workforce is not proficient in English, employers must post the Notification of Employee Rights in the language employees speak
  2. If workforce includes two or more groups constituting of 20 percent, employers must physically post information in each language or post notice in the language spoken by the largest group and distribute the notice to each employee in appropriate language

3.       Electronic Posting of Notice

  1. If an employer “customarily communicates” with employees about personnel rules or polices electronically, the employer is required to post the Notification of Employee Rights as prominently as other electronic notices to employees
  2. The information on the electronic version must be the exact copy of the NLRB’s poster or a link to the NLRB website that contains a copy of the poster must be present

4.       Under the NLRA, it is illegal for an employer to:

  1. Prohibit an employee from talking about or soliciting for a union during non-work time hours or from distributing union literature during non-work time hours, in non-work areas
  2. Prohibit an employee from wearing union hats, buttons, t-shirts and pins in the workplace except under special circumstance
  3. Question an employee about his or her union support or activities

5.       Responses to Posting Notification

  1. Employers still have the same rights under Section 8(c) to share their position and opinions in non-coercive manners
  2. Employers may inform employees about their rights to refuse to support a union—written or verbal

6.       Notification Options

  1. If it is eventually approved, consider the following options when posting the Notification of Employee Rights:

a.      Post the new notice

b.      Post the new notice and your own side notice

c.      Post the new notice and train supervisors on expectations and compliance

d.      Post the new notice and conduct meetings with employees to  build positive employer-         employee relationships

If you have additional questions regarding the NRLB and posting of the Notification of Employee Rights, please contact a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

Photo Source: avrene

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

Informative, Engaging and Entertaining: CAI’s 2011 Employment and Labor Law Update Conference

Monday, June 6th, 2011

Three hundred and seventy-two executives and HR professionals traveled to the McKimmon Center in Raleigh on May 17 and May 18 to attend CAI’s 2011 Employment and Labor Law Update Conference. CAI’s annual two-day event is designed to inform employers on the challenging and ever-changing legislative and regulatory environment companies are up against.

During the conference, lawyers from Ogletree Deakins and CAI staff members updated conference attendees on pertinent information ranging from a variety of topics, including health reform, NLRB changes and tips for creating effective company documents.

First-time conference goers, like Joan Inman, human resources director of SouthData, explored the 2011 conference to get professional expertise and vital information related to employers’ issues.

“I’m just seeking knowledge, and I want well-informed people telling me what I need to know,” Joan said on why she attended.

Each year CAI works with Ogletree Deakins to develop educational and engaging program sessions for the attendees. Those participating at the conference also receive notebooks packed with PowerPoint slides, white papers and several case studies that all further explain recent legal changes. Not only are the legal and regulatory updates a huge draw for conference attendees, but HR professionals like Yolanda Dejesus, director of human resources for the Office of Strategy and HR at AICPA, said the conference is “well worth the value” because of the information provided and the opportunity to network with others, including attorneys and company leaders from the Triangle, Triad and Eastern North Carolina.

“[CAI] always has great training and conferences. I always learn something new,” said Erika Koteff, HR manager at District Distributors when asked about the updates supplied at the conference.

Participants also have the opportunity to receive legal counsel on their own employment issues during the conference’s panel discussion. Featuring lawyers and HR specialists, the panel gives expert solutions to questions raised by audience members. Popular topics addressed during this year’s session included questions about FMLA guidelines and staying compliant with government instructions regarding I-9s.

Entertaining the audience members was a must at this year’s conference as well, and during the lively Wild and Wacky Cases session, guests learned about unbelievable cases that occurred in 2010. This year, the popular session highlighted information on crazy bathroom break policies, jaw-dropping workplace fraternizing and outlandish professional dress. Another fun and highly interactive part of the conference was the trivia game. Once the final informative session ended, Matt Keen of Ogletree Deakins asked participants to test their knowledge on the information presented at the conference by using electronic devices to answer the game’s yes or no questions.

The 2011 conference evaluations revealed that attendees found this year’s topics relevant and applicable to the many issues they are facing in their HR departments. CAI members, such as the Director of HR at Haven House Jennifer Boyler, return to the conference every year to stay up to date on news affecting employers.

“It’s a can’t-be-missed conference,” she said when describing the valuable event.

Please see the Employment and Labor Law Update web page at http://www.capital.org/lawupdate for additional information on the topics covered.  The 2012 conference will take place on May 2 and May 3 at the McKimmon Center in Raleigh.

Ten Things N.C. Employers Need to Know About Independent Contractors and Joint Employment

Tuesday, December 14th, 2010

Gretchen Ewalt from the Ogletree Deakins law firm shared her expertise on Employee Classification (Employee or Independent Contractor) and Joint Employment at CAI’s October members-only Ask the Expert. Participants left the sessions with a number of recommendations that, if implemented, will limit their organization’s exposure to costly litigation and potential penalties.

Below are some of the points covered in these sessions.

1. Independent Contractor Tests. There are a number of factors considered by the IRS and the USDOL in determining if a worker is an independent contractor or an employee.  A brief description of a true independent contractor is as follows:

  • The employer does not control the means and manner of how a project is performed, only specifying the expectations of the end result.
  • The “contractor” has a viable business concern, having the opportunity to make a profit or suffer a loss, and provides the same services to other employers.
  • The “contractor” absorbs expenses incurred during the project.

2. Penalties for Misclassification. Penalties for misclassifying an employee as an independent contractor include state and federal tax liabilities, as well as back pay for wage and hour overtime violations.

3. Conduct Internal Audits. It is recommended that periodic internal risk analysis audits be conducted to ensure that independent contractors are properly classified.

4. Draft Independent Contractor Agreements. Contracts for independent contractors should be drafted by legal counsel establishing expectations by both parties to clearly show that the independent contractor relationship exists.  Language also needs to be included stating that the contractor waives and relinquishes any rights to the client’s benefit plans and that the contractor agrees to comply with all business/industry standards.

5. Educate Managers and Supervisors. Managers and supervisors should know the difference between an employee and an independent contractor and understand the liabilities incurred due to misclassification.

6. Definition of Joint Employment. A condition where an individual is providing services that jointly benefits two or more employers.

7. Joint Liability. Employers that utilize employees from an outsourcing agency can be held liable along with the agency for complaints filed by those employees with state and federal regulatory bodies.

8. Time Credited for FMLA. The time spent by an outsourcing agency’s employee providing services to a client employer is credited toward FMLA eligibility if that employee is employed as a regular employee by the client employer.

9. Outsourcing Agreements. Agreements with outsourcing agencies should be carefully drafted by legal counsel to ensure that the agency is responsible for taxes, insurance, business licenses and all employment matters, including employee training, disciplinary actions, compensation/benefit programs and maintenance of personnel files.

10. Contract with Reputable Agencies. Make sure that your outsourcing agency complies with all applicable laws and specify such compliance in the outsourcing agreement.  Ensure that their personnel policies/procedures are sound and that their managers are well equipped to effectively deal with agency employee complaints.

If you have questions about employee classification or joint employment, please contact a member of CAI’s Advice and Counsel team at 919-878-9222 or 336-668-7746.

Photo Source: University of Waterlo