Posts Tagged ‘state law’

Unintended Consequences of Workplace Laws

Thursday, August 4th, 2016

courtgavelThe following post is by Bruce Clarke, CAI’s CEO and President. The article originally appeared in Bruce’s News & Observer column, The View from HR.

Our nonprofit association helps employers understand and comply with employment laws. We talk with lawmakers about workplace realities and the unintended consequences of well-intended rules. Employers understand the lawmaking process is chaotic and bears little relationship to a high school textbook on government. Still, the cumulative impact of thousands of laws and rules is a crushing burden to smaller employers.

Putting Out a Fire

State legislators are good firefighters, much better than Congress.   Show them a problem nearing the point of no return, and they will act. Workplace examples include workers’ compensation reform and unemployment insurance overhaul. Both became so unaffordable and unsustainable, difficult changes were made under Democratic and Republican leadership. True, if acted on sooner, the reforms could be gentler, but it is just not the nature of the legislative beast.

Solving the Real Problem

Many thoughtful legislators work hard to draft a solution to a significant, complex issue only to see additions or deletions gut the original intent. Sometimes, just the title from the original bill remains while the final text avoids those issues or addresses new ones entirely. When we ask human resource leaders to speak to committees about workplace bills, employers are surprised at this incongruence.  “What problem is the bill now solving?” and “What problem is the bill now creating?” highlight the squirrely journey from concept to reality, or on to legislative oblivion.

Protecting an Industry

State law contains many specific protections sought and maintained through smart lobbying. Tobacco companies won the “Lawful Use of Lawful Products” statute years ago to prevent employers and others from turning no-smoking rules into no-smokers rules. “Lawful products” were protected rather than the less-sympathetic cigarette. Lobbyists seek statutory licensing requirements for all-manner of trades and vocations with part of an eye on consumer-protection but both feet planted in competition-reduction: private investigators, cosmetic artists, nutritionists, massage therapists and lawn irrigationists are examples. North Carolina has over 100 tightly restricted trades, one of the highest numbers in the nation.

Pet Peeves

More often than we realize, a lawmaker’s idea for a bill is based on a single anecdote. A contractor in a lawmaker’s district did not get paid by a homeowner, so a bill was introduced to require paycheck deductions to repay all types of consumer debts. Imagine every employer withholding payroll dollars on past due credit card bills statewide, all because this one contractor was not paid?!   The bill failed, but each session brings a rash of next-door-neighbor bills and some do become law.

For these reasons and more, on balance, new laws tend to have more unintended than intended consequences. Some of those unintended consequences are good depending on your perspective. Others cause employers and consumers expense way out of proportion to any good accomplished. There are some great people in public service. Listening more to the people regulated or restricted by new laws, rather than primarily the isolated complainer (or well-financed advocates), would lead to better legislation.

CAI helps 1,100+ North Carolina employers with HR compliance, guidance, local survey data, training, tools, templates and more.

Bruce Clarke c

Bruce Clarke serves as CAI’S President and CEO, and has been with CAI since 2001. Bruce practiced labor and employment law with the national labor law firm of Ogletree Deakins for 18 years. He is listed in The Best Lawyers in America and was selected as one of North Carolina’s Legal Elite by Business North Carolina Magazine. Bruce is 100% committed to helping companies maximize employee engagement and minimize workplace liabilities.

 

POLITICS AT WORK: Employer Dos, Don’ts, and Be Very, Very Carefuls

Tuesday, October 23rd, 2012

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2012 Triad Employment Law Update.

With early voting already under way and only a short time until the real election day (November 6 – don’t forget!), this is a good time to provide some guidance for employers seeking to keep a civil workplace between now and November 7.

(By November 8, we hope that everyone has forgotten this entire ordeal and is back to normal until next year, when the 2016 campaign begins.)

HERE’S THE NOVEMBER 7 RULE: If your candidate won, do not “spike the ball in the end zone” at work. Wait until you get home. If your candidate lost, wish the winner well, or say nothing. Mourn for the demise of our once-great nation when you get home.

DO’s

DO encourage employees to “talk politics” with people they substantially agree with, or people who are still making up their minds and are looking for guidance. Discourage political discussions among employees who have fervently-held opposing views and whose minds are made up.

DO encourage employees to keep their political discussions courteous, respectful, and focused on the issues rather than personalities or candidates’ “EEO” characteristics, such as the President’s race or Governor Romney’s religion.

DO (if appropriate for your work environment) prohibit political discussion in the presence of customers, or when employees are expected to be actually getting some work done.

DO consult with applicable state law about voting leave, and comply with it. Please note that in some states you have to post a voting-leave-rights notice in advance of election day. Be sure you have done this if those laws apply to you.

DO be aware that, in a handful of states, it is unlawful for an employer to try to influence an employee’s vote. (The voting-leave chart linked in the prior “DO” includes these laws.) If you operate in one of these states, you should not overtly (with employees) endorse or oppose any candidate, referendum, or other initiative.

DO remind employees of your internet and email policies, and encourage them to be judicious and professional in sending or forwarding political emails or links.

DO feel free to break up employees’ political discussions at work if the atmosphere is becoming contentious or employees appear to be uncomfortable. DO encourage your employees to “self-police” political discussions by leaving, or warning their co-workers when the discussion appears to be heading into hostile territory.

DO feel free to ensure that political discussions do not interfere with getting the job done.

DON’Ts

DON’T have a flat ban on all political talk at work. As most employers know, the First Amendment does not apply to private workplaces, but the National Labor Relations Act could come into play if the discussions implicate “terms and conditions of employment.”

DON’T make, or allow others to make, comments about candidates that may be discriminatory or harassing based on the candidates’ or their supporters’ race, sex, national origin, religion, color, age, disability, or any other legally protected characteristic.

BE VERY, VERY CAREFULs

BE VERY, VERY CAREFUL about political discussions among employees about issues that are especially inflammatory or emotional, such as same-sex marriage, LGBT rights, reproductive rights, and affirmative action. These are legitimate topics for political discussion, but they are also sensitive and carry a high risk of creating hurt feelings or causing hostility.

BE VERY, VERY CAREFUL about sharing your company’s political views, assuming you live in the majority of states where this is legal. Be sure to preface your discussion with a statement to the effect that the decision of how to vote is the employee’s, and the employee’s alone. Then present the company view as “We wanted to share the Company’s position on [CANDIDATE OR ISSUE].” Keep the discussion objective, factual, and focused on issues, not personalities. At the end, remind employees that you are only sharing the company’s view and are not attempting to tell employees how to vote. But be aware that some employees will still view this as “pressure,” and take that into account in making the decision whether to share the company’s views at all.

CAI’s 2012 Triad Employment Law Update, scheduled for November 7 at the Koury Center in Greensboro, will provide additional information on staying compliant with state and federal laws. The conference will also provide material on several legal topics affecting employers, including ADAAA, FLSA Exemption, Immigration and Healthcare Reform. Register today at www.capital.org/triadlaw.

North Carolina E-Verify Law Starts to Impact Employers

Tuesday, October 2nd, 2012

The E-Verify system is a federal internet-based tool that allows you to determine the eligibility of employees to work in the United States. As of yesterday, Oct 1, 2012, North Carolina companies with 500 or more employees are required by law to start implementing the federal E-Verify system to verify work authorization for all new hires. You must complete online training and sign a Memo of Understanding before you use the system.

Make sure you are familiar with your obligations under the new law. Review the different scenarios below:

You are a federal contractor or subcontractor with the FAR E-Verify clause in your contract

If your company has not yet enrolled in E-Verify, then you have 30 days from the date of contract award to enroll, and 90 days from the date you enroll with E-Verify to initiate verification queries for employees already on your staff who will be working on the contract and to begin using the system to verify newly hired employees. After this 90-day phase-in period, you will be required to initiate verification of each newly hired employee within three business days after their start date. To meet this three-day requirement, employers may initiate verification of a newly hired employee before their start date if the employee has accepted the job offer and filled out the Form I-9.

Please note that pre-screening of job applicants is not allowed; the system may be used for new hires only after the employee has been offered the job and has accepted. Please also remember that you must continue to use E-Verify for the life of the contract for all your new hires, whether or not they are employees assigned to the contract. For more information on the FAR E-Verify clause, go to http://j.mp/ev-fa.

You are not a federal contractor with the FAR clause but want to voluntarily use E-Verify

You must use the federal E-Verify system for all new hires for each hiring site that you choose to use E-Verify. The hiring site is typically where the employee completes the I-9 form. (Note: It may be different from where the form is verified – the verification site.)

However, you can exclude hiring sites if not required by state or federal law to use E-Verify. For more information, go to http://j.mp/11-ev.

You are a North Carolina employer

North Carolina employers will be required to use the federal E-Verify system based on the following schedule: [Note: North Carolina municipalities and counties were required to use it on October 1, 2011.]

  • October 1, 2012 for employers with 500 or more employees (and governmental agencies);
  • January 1, 2013 for employers with 100 to 499 employees; and
  • July 1, 2013 for employers with 25 to 99 employees.

For North Carolina, covered employers are only required to use E-Verify for all employees who work in North Carolina. If you have employees who work in other states but they complete their I-9 paperwork at the North Carolina hiring site, they must be run through E-Verify. If you are hiring sales reps or other employees who will not work in North Carolina, you must consider three things in determining whether you will be required to use E-Verify:

  • Is their hiring site a site in North Carolina for which you are using E-Verify? If yes, they must be run through E-Verify.
  • If not, does the state(s) where they are working require E-Verify and do you meet the criteria? If so, they must be run through E-Verify.
  • If not, is their hiring site a location for which you are already using E-Verify? If so, they must be run through E-Verify.

At a future date, the North Carolina Department of Labor will issue information as a result of hearings on E-Verify to clarify the North Carolina E-Verify requirement. For more information, go to http://j.mp/ev-nc.

None of the above conditions apply to your organization

If none of the above applies to you, check the laws for states where you do business to determine if you are required by state law to use the federal E-Verify system.

If you have questions about E-Verify, please contact a member of CAI’s Advice and Counsel Team at 919‑878‑9222 or 336‑668‑7746.

Photo Source: Victor1558