DOL wants you to know ... there's an app for that

They may never compete with the popularity of Google Maps, but the U.S. Department of Labor (DOL) is getting in on the smartphone apps game. First, the DOL launched a mobile Timesheet app in May to help employees independently track their hours. Since then, they've rolled out an OSHA Heat Safety Tool and a Labor Statistics app.

While somewhat controversial (because it relies on the accuracy of the user), the Timesheet app lets employees track the hours they've worked and determine the hours they're owed. The app also provides links to web pages of the DOL's Wage and Hour Division. Ultimately, it could make employers more accountable for maintaining accurate employment records, especially if their records are called into question in a Wage and Hour Division investigation. The DOL is quick to emphasize, however, that the app is designed as a reference tool only, and that it doesn't include every possible situation that comes up in the workplace.

The OSHA Heat Safety Tool lets you calculate the heat index for your worksite and display a risk level to workers, based on the results. At the same time, you can get reminders about the proper measures for protecting workers from heat-related illnesses -- from scheduling rest breaks to monitoring each other for signs of heat distress.

And finally, the Labor Statistics app is a great little resource for perusing the latest numbers from the Bureau of Labor Statistics and the Employment and Training Administration, including Unemployment Rate, Consumer Price Index, Average Hourly Earnings and more.

It remains to be seen how popular these apps will be among employers, but the DOL deserves credit for entering this technological arena. As Secretary of Labor Hilda Solis says,

"The Labor Department is continuously exploring how to share important information using the fastest, simplest, most wide-reaching means available ..."

DOL wants you to know ... there's an app for that

IRS gives businesses a chance to correct worker misclassification

While it's not always easy determining whether an individual is an independent contractor or employee, there's a lot at stake if you get it wrong. An employer, of course, has to withhold income and other taxes, as well as pay unemployment taxes and half of an employee’s Social Security and Medicare taxes. But you don’t have to do any of these things when you hire an independent contractor.

In recent years, however, the Internal Revenue Service (IRS) has stepped up worker classification audits to try to reduce the tax gap caused by the disconnect between what the IRS should be collecting and what it's actually collecting. And now, to help ramp up compliance even further, the IRS has announced a new program to encourage businesses who may be getting the classification wrong to voluntarily reclassify independent contractors as employees.  

The Voluntary Classification Settlement Program (VCSP) was rolled out on September 21, 2011. Eligible employers get a break from the sizable employment tax liability, penalties and interest they would have faced from reclassifying workers, whether voluntarily or due to an audit.

To qualify to participate in the VCSP, you must:

=> have consistently treated the workers as independent contractors and filed all required Forms 1099 for the previous three years

=> agree to extend the statute of limitations by three years for employment tax assessments for the first three years beginning on the date the VCSP closing agreement is signed

=> not currently be under audit by the IRS, the Department of Labor or any state agency regarding worker classification  

Keep in mind, too, that you must apply for the VCSP at least 60 days before the date you plan to reclassify the workers.

For additional insight on the Voluntary Classification Settlement Program, check out the FAQs on the IRS website.

IRS gives businesses a chance to correct worker misclassification

DOL and ABA partner to help resolve wage-related complaints

In the first-ever collaboration between a federal agency and the private bar, the Department of Labor (DOL) and American Bar Association (ABA) will join forces to resolve employee complaints received by the Wage and Hour Division (a department that handles more than 35,000 employment-related legal complaints in a typical year).

Through an attorney-referral system, the new program will ensure more workers obtain legal assistance for complaints such as not getting paid the minimum wage, not being paid overtime, or being denied family medical leave.

As of December 13, complainants whose cases cannot be resolved by the DOL due to limited capacity will get a toll-free number connecting them to a network of state and local ABA-approved attorneys. If the DOL has already conducted an investigation, the complainant will receive the findings to share with the attorney who takes the case. The DOL also has established a special process to help complainants and representing attorneys obtain additional case details and documents.

According to DOL Secretary Hilda Solis, this collaboration “streamlines worker access to additional legal resources and builds on the Department of Labor’s continued efforts to ensure that employers comply with America’s labor laws.”

To learn more, check out the We Can Help area of the DOL’s website.

DOL and ABA partner to help resolve wage-related complaints

Wage and hour lawsuits outnumber all other class actions combined

According to a 2010 survey of more than 1,800 legal and HR professionals, one-third of respondents were hit with a wage and hour claim in the past year. At the same time, more than half of respondents shared that their organization has increased spending for wage and hour compliance.

Shanti Atkins, the President and CEO of ELT, the workplace compliance training company that conducted the survey, explains the dramatic rise in claims: “Employers are being hit from two sides. On one, there is a better funded, more fully staffed Dept. of Labor (DOL) that has made fighting wage theft one of its key priorities. On the other side are aggressive plaintiff law firms that literally salivate at these easy-to-identify and easy-to-win, lucrative class actions.”

To complicate matters further, the DOL reports that more than 80% of employers are out of compliance with federal and state wage and hour laws! The top Fair Labor Standards Act (FLSA) that get employers in trouble are:

• Misclassifying a non-exempt employee (eligible for overtime) as salaried/exempt
• Not paying overtime to non-exempt employees for all hours worked, including unauthorized overtime
• Making improper salary deductions from exempt and non-exempt employees

Go here for clear guidelines on how to comply with FLSA regulations – and practical forms and recordkeeping tools to keep you on track.

Wage and hour lawsuits outnumber all other class actions combined

Federal agencies to bump up enforcement in 2010

Last year a number of federal agencies increased their compliance enforcement efforts, including the Department of Labor (DOL), Internal Revenue Service (IRS), Equal Employment Opportunity Commission (EEOC), Occupational Safety and Health Administration (OSHA) and Department of Homeland Security (DHS). Recent actions by these agencies suggest that this trend will continue in 2010:

• Designed to raise employee awareness of their rights under the Fair Labor Standards Act (FLSA), the recently launched, DOL-sponsored We Can Help campaign will undoubtedly increase the number of employee wage and hour complaints to the agency. The campaign is actively targeting the country’s lowest-paid workers, regardless of citizenship status, and encourages them to submit information, including pay stubs and hours of work, via the agency’s website. In addition, the DOL received a significant uptick in funding for 2010, and is requesting more in its proposed 2011 budget.

• Immigration enforcement is a priority for the Obama administration, and the DHS is following through with plans to conduct 25,000 on-site inspections at companies who employ workers with H-1B visas – an increase of nearly 20,000 over the previous year.

• Secretary of Labor Hilda Solis has promised more OSHA inspections, and employers can expect to see a shift to a more aggressive, citation-based approach from OSHA. Last year, between July and September, OSHA performed nearly 700 inspections and issued over 1,000 violations that resulted in $1.6 million in fines.

Enforcement efforts like the We Can Help campaign and others underscore the importance of maintaining strict compliance with federal regulations, including those covering labor, safety, tax, immigration and employment law. Stay tuned for more updates as they come.

Federal agencies to bump up enforcement in 2010

Survey reveals heavy financial burden of class action lawsuits

Based on the sixth annual Workplace Class Action Litigation Report by Seyfarth Shaw LLP – a leading law firm handling complex employment litigation – employers should be aware of several key trends that occurred in federal and state courts last year:

• Class action filings seeking recovery for unpaid wages and 401(k) losses increased. More age discrimination and Worker Adjustment and Retraining Notification (WARN) lawsuits were filed, too, due to workers being displaced in layoffs.

• Wage and hour litigation outpaced all other types of employment-related cases, especially in CA, FL, IL, NJ, NY, MA, MN, PA and WA.

• The Obama Administration’s renewed focus on regulation and enforcement, mostly through the DOL and EEOC, continues to increase exposure for employers.

• Massive settlements were seen in several nationwide class actions, as plaintiffs’ lawyers pushed for greater damages. The top 10 employment discrimination settlements in 2009 totaled $86.2 million, while the top 10 wage and hour settlements reached $363.6 million.

Just one major, costly lawsuit could be devastating to your business. Stay on the right side of the law and reduce your risk with legally compliant products and services – from Poster Guard® Compliance Protection to the latest FMLA, FLSA, OSHA and HIPAA compliance materials.

Survey reveals heavy financial burden of class action lawsuits

Unpaid internships a "no-no" with Department of Labor

While job openings are certainly scarce during these recessionary times – and companies are looking for ways to cut costs - those aren’t excuses for doling out unpaid internships to young people eager to get a foot in the door. Federal and state regulators are concerned that employers are abusing internships and using them, in a sense, for free labor.

In fact, the DOL plans to crack down on employers who offer unpaid internships, taking the position that interns are entitled to wages under the Fair Labor Standards Act (FLSA). And to support that position, the previously flexible interpretations of whether or not to pay interns are about to get much stricter.

"If you're a for-profit employer or you want to pursue an internship with a for-profit employer, there aren't going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law," said Nancy J. Leppink, director of the Department's Wage and Hour Division.

In general, for an unpaid internship to be lawful under the FLSA, the intern must be properly classified as a "trainee" rather than an "employee." To help you determine this, the DOL has developed a six-factor test.

Interns are likely to be deemed “trainees” if:

1) The training is similar to what might be offered in an academic institution or vocational school.
2) The training is for the benefit of the trainees.
3) The trainees do not displace regular employees, but work under their close supervision.
4) The employer derives no immediate benefit from the training, and occasionally the employer's operations may be impeded by the training.
5) Trainees are not entitled to a job at the end of the training period.
6) The employer and trainees understand that the trainees are not entitled to wages for time spent in training.

In the meantime, legal experts offer this advice: Assume that all unpaid internships are unlawful, and carefully tailor your training programs for new or prospective employees to avoid liability.

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Unpaid internships: A rip-off or legitimate resume booster?

Unpaid internships a "no-no" with Department of Labor

Looks like we made it - Saying goodbye to 2009 and hello to 2010

So here we are, ushering in 2010 … a fresh, unspoiled year … a blank slate waiting to be filled with new experiences and opportunities. The year ahead feels like that shining, new employee you just hired, coming to you with impeccable credentials and a winning personality. Will the new year, like that new employee, be everything you hoped for?

In addition to wishing you a "Happy New Year" in this first blog post of 2010, I feel like I should express my congratulations, too. Congratulations on enduring a year that was anything but dull, thanks to a lingering recession, the swearing in of a new, Democratic president and heightened labor law enforcement under the Obama administration. Many of you successfully kept your businesses afloat with fewer employees, fewer resources and budgets that were cut to the bone.

Lest you forget your strength and resilience during such trying times, let us take a quick walk down memory lane to revisit the changes that hit employers the hardest in 2009 (and that were covered in HR Forum):

=> New Family and Medical Leave Act (FMLA) rules become effective in January, with expanded military coverage and revised guidelines on determining FMLA eligibility and handling leave requests.

=> In his first piece of legislation as President, Barack Obama signs the Lilly Ledbetter Fair Pay Act into law in late January, an equal-pay bill designed to make it easier for employees to sue for pay discrimination.

=> In response to the nation’s dire economic situation, President Obama signs a $787 billion stimulus package that includes a COBRA subsidy for laid-off workers, hiring incentives via tax credits for certain types of workers and other new HR requirements.

=> Just as most businesses are preparing to update their employment verification practices to incorporate newly updated I-9 Forms, the Department of Homeland Security (DHS) pushes back the scheduled update by two months (to April 3).

=> In late April, Secretary of Homeland Security Janet Napolitano urges employers to aggressively prepare for another outbreak of swine flu to prevent it from becoming a full-fledged pandemic.

=> The U.S. Immigration and Customs Enforcement (ICE) launches a bold initiative in early July as part of its stepped-up enforcement, alerting 652 businesses nationwide that ICE agents will be inspecting their hiring records.

=> Beginning September 8, all federal contractors and subcontractors are required to use E-Verify, a free, web-based system, that compares employee information from the Form I-9 against federal databases to verify a worker’s employment eligibility.

=> Also in September, all businesses covered by HIPAA - or that offer products or services that interact with protected health information – must notify individuals when their health information has been breached, along with updating their HIPAA policies and procedures.

=> In October, OSHA announces a national emphasis program (NEP) on recordkeeping to assess the accuracy of injury and illness data recorded by employers, largely due to unusually low incidence rates in traditionally high-rate industries.

=> The provisions of the Genetic Information Nondiscrimination Act (GINA) go into effect in November, which includes an updated EEOC “Equal Employment Opportunity is the Law” poster – the fifth federal-level posting change in five years.

Awareness and action in 2010

While the new year is starting on a high note – with many experts indicating that the recession is lifting – we can most likely expect a similar level of labor law reform and increased enforcement under the Obama administration in 2010. Check back here often for insights on the latest legal and HR issues affecting your business, including solutions to help you meet every challenge like a seasoned pro.

Looks like we made it - Saying goodbye to 2009 and hello to 2010

DOL and EEOC could receive major financial boost in 2010

The House approved a massive $447 billion spending bill that would provide a significant bump in funding for the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) for fiscal year 2010. The Consolidated Appropriations Act (H.R. 3288), which combines six separate spending measures, passed by a vote of 221-202 on December 10. The bill is now with the Senate and must be passed by December 18 – or extended by a temporary measure to keep it afloat.

Here are a few highlights regarding the proposed funding:

=> $13.3 billion for the DOL, with $1.6 billion earmarked for worker safety and health programs ($121 million more than the amount provided in 2009)

What it means: More financial support for the enforcement and compliance initiatives of the Employment Benefits Security Administration (EBSA), Employment Standards Administration (ESA), the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) – including the hiring of 600 new, full-time employees. Employers could see a greater presence by OSHA, with more inspections, more audits of safety records and more enforcement of required safety standards.

=> $367 million for the EEOC ($23 million more than the amount provided in 2009)

What it means: More funding to ease the backlog of 70,000+ pending employment discrimination cases. The EEOC received 93,277 private-sector discrimination charges in 2009, the second-highest number in 20 years. Employers could see more employee lawsuits coming their way for discrimination based on race, color, national origin, sex, age, religion or disability.

So while we can’t be certain how this bill will play out in the coming months, we do know that President Obama's administration places a high priority on employment and labor law reform, particularly the enforcement of laws designed to protect employees.

Now, more than ever, employers need to step up their compliance and training programs to prevent costly fines and potential lawsuits. In light of this possible funding and renewed enforcement, you would be wise to:

1. Conduct procedural audits and other internal reviews to identify any issues that require immediate action.

2. Review and revise the employment policies in your company’s Employee Handbook and ensure they’re properly distributed. Be certain your policies reflect the many employment law developments in the past year, such as changes to the ADA, FMLA and COBRA.

3. Assess your internal complaint procedures (as well as your employees’ awareness of such procedures). Employees who cannot voice their concerns are more likely to feel powerless and as a result, take legal action against their employers.

4. Provide ongoing harassment prevention and anti-discrimination training to employees and managers. Your company must send a clear message that harassment will not be tolerated in the workplace – and support that message with education on how to recognize and prevent harassment.

5. Maintain up-to-date labor law postings and other specialized, employee-facing posters, which keep your company in compliance and act as a first line of defense in an employee-based lawsuit.

DOL and EEOC could receive major financial boost in 2010