Posts Tagged ‘state regulations’

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.

 

7 Updates on NLRB and OFCCP Proposed Rules and Posters

Tuesday, August 14th, 2012

Make sure your company is complying with recent changes in employment regulations and up to date on the newest proposals from the National Labor Relations Board (NLRB) and the Office of Federal Contract Compliance Programs (OFCCP). There are several rules “in limbo” right now due to delays or court challenges. Review the seven updates below to avoid costly fines:

1. The NLRB Poster Rule

The controversial NLRB poster highlighting the right to strike, pass out literature and join a union is on hold due to litigation. The final briefs were just filed with the federal court in Washington, DC. Oral arguments are set for September 11 in the case. No one can say when there will be an answer. In the meantime, the poster is not required. [Note: Federal contractors fall under older, different rules.]

2. The Micro-Unit Issue

The NLRB ruled in favor of the International Association of Machinists in the Nestle Dreyer Ice Cream case, allowing a “micro-unit,” or historically-small unit, to proceed to election. The union won the vote and the company has appealed. CAI is supporting the amicus brief by the National Association of Manufacturers (NAM) to prevent these “micro-units” from being carved out of facility-wide voting units. [Note: The IAM lost three prior elections in the broader, traditional voting unit.]

3. The Ambush Election Rules

The NLRB issued rules in December 2011 changing key provisions of their election procedures. The most controversial changes shorten the time between an election petition and voting day. Court challenges were filed on two theories: (1) the Board has no authority to do this by rulemaking and (2) there was no quorum during the Board vote on the rules. The district court ruled on May 15 that there was no quorum (since only two Board members voted) and the Board agreed to “temporarily” suspend these rules. On July 29, the Board asked the court to reconsider its order because a third Board member was arguably “present” for the vote. No court has yet ruled on the Board’s authority to issue the rule in the first place. About 150 election petitions were processed under the new rules before they were suspended.

4. The USDOL Persuader Rules

The US Department of Labor (USDOL) issued proposed rules to broaden the definition of a “persuader” in union election campaigns. In summary, the revisions could require disclosure of the costs and sources of any activity that could affect an employee’s vote, such as management training to help supervisors do a better job. There is no recent activity on this and it is unlikely we will see a final rule before the elections. The American Bar Association is now officially opposed to the rules.

5. Congressional Attempts to Override Recent Rulings

There is activity in the US House of Representatives to legislatively override the NLRB ambush election rules, the USDOL persuader rules and the micro-units case. The bill has made it through “markup” and into the assigned Committee. It is hard to see how passage by the House would have any impact given the vote count in the Senate and the need for Presidential approval.

6. OFCCP Disability Rulemaking

The OFCCP (part of USDOL) issued a Notice of Proposed Rulemaking December 9, 2011 seeking comments on a possible rule to set a seven percent national “utilization goal” for hiring of disabled employees. No action has yet been taken to put the rule in place. The NAM and its allies just sponsored a study by the Center for Corporate Equality assessing the costs and issue raised by the Proposed Rule. That study has been sent to OFCCP and to the Office of Management and Budget, which must assess the cost of employer implementation. We do not expect action before the November election.

7. NLRB Sues Hyatt Hotels for At-Will Statement in Handbook

The NLRB filed a complaint against Hyatt Hotels in February for maintaining a handbook statement on at-will employment. Apparently, the Board does not object to defining “at-will” employment, to reserving the right to change rules at any time, or to saying that nothing in the handbook alters at-will status. The Board does object to seeking an employee acknowledgement form and signature where the handbook stated that at-will status could not be changed by any manager other than the President or COO. The Board viewed this as waiving the right to seek a union to bargain away those terms. This is common language in handbooks to prevent an employee from alleging a mid-level manager made a promise of employment for a fixed term or for “life.” The Board said since a union contract could alter that language, the employer’s statement was “overly broad” and violated the law. Hyatt agreed to change the wording before it went to court. This is just the latest in a string of questionable interpretations of handbook language by the NLRB. As a result, it has become difficult to predict what part of a typical employee handbook will be challenged next.

If you have questions regarding any of the issues mentioned in this article, please contact a member of CAI’s Advice and Counsel team at 919‑878‑9222 or 336‑668‑7746.

Photo Source: Victor1558

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