Mark your compliance calendar: New NLRA poster to be posted by April 30, 2012

Good news for all you professional procrastinators. Just when you were all geared up to order the new mandatory NLRA posting, the National Labor Relations Board has pushed back the effective date. Rather than January 31, 2012, the deadline for posting the employee rights notice is now April 30, 2012.

The NLRB postponed the date at the request of the federal court in Washington, D.C., which is involved in a legal challenge regarding the rule. The court expects to resolve the legal issue in the months leading to this modified deadline.   

Mark your compliance calendar: New NLRA poster to be posted by April 30, 2012

Enforcement kicks into high gear - Don't leave your compliance efforts idling!

After shoring up their resources last year, the Equal Employment Opportunity Commission (EEOC) and Immigration and Customs Enforcement (ICE) are flexing their enforcement muscles ... and planning to pack a punch in 2011.

Increased staffing and a sharper focus on enforcement will mean more audits, more investigations into complaints and more inspections in the months ahead.

The EEOC, for example, received a record-high of 99,922 discrimination charges in 2010. Yet because of the EEOC’s expanded resources, the number of pending charges dropped by 14 percent. And that’s not all: Greater claim-processing procedures resulted in the EEOC collecting an all-time high of $404 million from employers last year.

ICE is making its presence known, as well. Last year, the agency conducted more than 2, 200 employer audits, which led to 180 criminal charges. And immigration enforcement continues to be a priority for the Obama administration, with ongoing goals to conduct on-site inspections (particularly businesses that employ workers with H-1B visas) and expose illegal hiring practices.

In light of these recent statistics, it’s never been more important to prevent harassment and discrimination in the workplace (via clear policies, legally sound actions and attitudes, and regular training) and to keep scrupulous I-9 records on all employees. Otherwise, you could find your company on the receiving end of a discrimination lawsuit or I-9 audit.

Enforcement kicks into high gear - Don't leave your compliance efforts idling!

How to steer clear of legal landmines in the new year

Protecting your business and “not getting sued” are topics that come up again and again on this blog. Whether you’re an HR professional, business owner or people manager, you’re all too aware how one legal misstep or compliance lapse can lead to much bigger trouble down the road.

That’s why my interest was piqued when I ran across a spot-on article by Susan K. Lessack, a labor and employment law partner with Pepper Hamilton LLP.

In her “Top Ten Things to Do in 2010,” Lessack discusses some important actions for minimizing the risk of employment-related litigation in the new year. In a nutshell, she suggests that you:

1. Make sure your company has a pandemic plan
2. Check your policies to ensure they’re a friend of GINA
3. Be sure you comply with the regulations issued by the Office of Federal Contract Compliance Programs (OFCCP) if you’re a federal government contractor
4. Ensure that disability leave policies do not contain inflexible provisions
5. Audit your wage-and-hour practices
6. Review relationships with independent contractors to evaluate whether those individuals are classified properly
7. Consider having a policy that advises employees who need a reasonable accommodation to request one
8. Review existing communication systems to ensure that employees have a way of raising concerns, and train manager to be effective in listening to and addressing those concerns
9. Develop a policy concerning employee use of social media, such as blogs, Facebook, MySpace and the like
10. Remember to document and communicate to employees any performance problems

Do yourself a favor and check out Lessack’s article for a quick snapshot of the best tactics for keeping your hands clean of any messy legal snafus. Many of the suggestions have been covered in this blog before, but they’re all points worth repeating. As are Lessack’s final words of advice for the litigation leery: “Remember that employees who feel they are treated fairly and with respect are less likely to bring claims against their employers.”

How to steer clear of legal landmines in the new year

Has the No-Match Rule met its match with E-Verify?

In a bit of a “I told you so” move, the Department of Homeland Security (DHS) proposed a new regulation on August 19 that could kill the controversial Social Security Administration (SSA) No-Match Rule. As you recall, the rule established a “safe harbor” provision allowing employers 90 days to resolve any employment eligibility issues identified in a No-Match letter or notice from DHS. (Typically, an employee’s name and Social Security Number - as provided in a W-2 earnings report - not matching SSA records.)

Most employers aren’t sad to see the rule go. This is largely due to the fact that even though millions of undocumented immigrants receive No-Match letters every year, so do legal workers, due to clerical errors, unreported name changes and other discrepancies. Regardless of the circumstances, the No-Match Rule would have put employers in the hot seat, requiring them to penalize or fire workers who were unable to correct their Social Security records in time.

In the rule’s place, the DHS plans to focus its enforcement efforts on employer participation in E-verify. This free, Web-based system, operated by DHS in partnership with the SSA, compares employee information from the Employment Eligibility Verification Form (Form I-9) against federal databases. “E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” says DHS Secretary Janet Napolitano.

Like I mentioned earlier, it’s not like we didn’t see this coming. In a July 8 press release from the DHS, it was revealed:

DHS will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive SSA No-Match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records—often due to typographical errors or unreported name changes. E-Verify addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.

What to do in the meantime?

Even though it looks like the DHS will not be mandating a “safe harbor” process for responding to No-Match letters anytime soon, you should still follow some basic precautions when screening and verifying an employee’s eligibility to work.

By law, you may not:

Set different standards for verifying employment eligibility or require that different documents be presented by different groups of employees. For example, you cannot waive I-9 requirements for individuals appearing to be U.S. citizens.

Require applicants to provide I-9 documentation before making a job offer. Legally, job applicants do not have to verify their identity or employment eligibility until they actually start work.

Specify or select which documents must be provided. The I-9 form lists the specific documents an individual may provide to establish his/her identity and work authorization. Employers must allow individuals to choose from this list of permissible documents.

Discriminate against individuals with “temporary” work authorization status. Temporary resident aliens and individuals who have asylum typically have documents that expire, but they ordinarily obtain extensions.

Has the No-Match Rule met its match with E-Verify?

ICE announces audits, review Form I-9 best practices

Last week U.S. Immigration and Customs Enforcement (ICE) launched a bold audit initiative as a part of the agency’s stepped-up enforcement of employment and immigration laws. ICE issued Notices of Inspection to 652 businesses nationwide to alert employers that ICE will be inspecting their hiring records.

The Department of Homeland Security (DHS) requires employers to verify that all new employees are eligible to work in the U.S. using the employment eligibility verification form (Form I-9). Neglecting to fill out forms or filling out I-9 forms incorrectly can result in fines of up to $1,100 for every incorrect form.

Knowing how to fill out new-hire forms correctly and the rules on how long you must retain those documents will help protect your business in the event of an ICE audit.

Anyone in your organization involved in the hiring process should be trained on the correct way to complete I-9 forms and federal recordkeeping requirements. Training should cover Form I-9 best practices, including, but not limited to:

• How to properly complete an I-9 form at the time you hire a new employee. Employees must present identity and work authorization documents within three days of the date of hire.


• Expired documents as proof of identification or work eligibility are not acceptable. Review the list of documents that fall under List A of the List of Acceptable Documents.


• The importance of keeping I-9 forms separate from employee personnel forms.


• How using a binder system for storing I-9 forms, one for current employees and one for terminated employees, can help your business stay in compliance.


• To periodically review current I-9 forms to identify employees who need to update their work eligibility status.


• Businesses must retain I-9 forms for the duration of a worker’s employment, plus one year, or for a minimum of three years from the date of hire, whichever is longer.

Read more on how to handle I-9 forms and about the most recent changes to the I-9 Form.

ICE announces audits, review Form I-9 best practices

Unpaid interns and the FLSA, what you need to know before hiring summer help

Spring is here and summer fast approaching, along with droves of college students hoping to turn their free time into a few months of valuable on-the-job training.

Whether it's because they're simply looking for work experience, or they need to earn a few more college credits, many students are willing to intern for little to no money at all.

While many companies may see at it as the perfect opportunity to get some extra help around the office, there are a few legal issues to consider before agreeing to something for nothing.

Intern or employee?

The Fair Labor Standards Act (FLSA) requires that nonexempt employees receive at least minimum wage for all hours worked and must also receive time-and-a-half pay for all hours worked more than 40 during the workweek.

While the FLSA doesn't define what an intern is, nor provide an exemption from minimum wages or overtime for interns, it does define an employee as "any individual employed by an employer." The definition of "employ" under the FLSA "includes to suffer or permit to work."

Under federal law, for-profit organizations must pay workers unless the position fits six criteria:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;


2. The training is for the benefit of the trainee;


3. The trainees do not displace regular employees, but work under close observation;


4. The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion the employer’s operations may actually be impeded;


5. The trainees are not necessarily entitled to a job at the completion of the training period; and


6. The employer and the trainee understand that the trainees are not entitled to wages for the time spent in training.

To ensure compliance, employers offering unpaid internships should structure the position in a way that the intern receives the full benefit of the experience.

Employers can take it a step further and establish a written agreement between the business and the intern outlining the terms of the unpaid internship. The document should contain a clear definition of the position, including that it is a learning experience.

If you're not careful, hiring an unpaid intern that later turns out to qualify as an employee could potentially cost your company thousands in unpaid wages and hefty legal fines. When in doubt, pay interns at least minimum wage to avoid legal problems.

Unpaid internships that do not match all six of the DOL's criteria could also lead to legal problems involving workers' compensation, employee benefits, discrimination laws, federal and state taxes, and unemployment insurance coverage.

Failing to comply with wage and hour laws can lead to serious FLSA administration errors that could cost your business thousands in fines. Tools like the FLSA Compliance Kit can help you navigate through every FLSA regulation from child labor laws to timekeeping discrepancies.

Any additional advice for companies hiring unpaid interns for the summer? Please leave a comment and share your tips.

Unpaid interns and the FLSA, what you need to know before hiring summer help

Illegal immigration enforcement shifts toward employers

U.S. Immigration and Customs Enforcement (ICE) recently announced that illegal immigration enforcement will be shifting away from undocumented workers and toward employers.

The announcement comes in the wake of a Supreme Court decision on May 4, ruling that a worker can not be charged with aggravated identity theft, subject to an extra two years in prison, if the worker was unaware they were using an actual person’s information.

Violating the statute requires that an offender “knowingly … uses, without lawful authority, a means of identification of another person.” The government argued that “knowingly” didn’t pertain to the identity theft portion of the law.

On behalf of his colleagues, Justice Stephen Breyer wrote, “As a matter of ordinary English grammar, it seems natural to read the statute’s word ‘knowingly’ as applying to all the subsequent elements of the crime.” (Workforce Management)

Only days before the ruling, on April 30, the Department of Homeland Security changed their policy on illegal immigration and will now target the employers of undocumented workers, rather than the illegal workers themselves.

“Effective immediately, ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.” (DHS)

ICE has been instructed to target “employers who cultivate illegal workplaces” for civil fines, along with criminal prosecution in federal court. ICE will continue to arrest any illegal workers found during worksite investigations and process them for deportation.

DHS issued a new Fact Sheet on its Worksite Enforcement Strategy to help employers fully understand the change in policy and comply with immigration laws. Download a copy of the Fact Sheet (.pdf).

As of April 3, 2009, employers are required to use the revised Form I-9 for Employment Eligibility Verification. All new employees, including U.S. citizens, must verify their work eligibility with an I-9 form when they are hired.

Employers do not need to submit forms to the government for verification, but must hold on to the forms for three years after the employee’s date of hire or for one year after the date the employee leaves the company (whichever date is later).

Order the updated Form I-9, along with detailed tip sheets, to ensure your business stays in compliance with federal recordkeeping requirements. Employers can find more tools and information on filling out I-9 forms correctly in the ComplyRight I-9 Recordkeeping Kit.

Illegal immigration enforcement shifts toward employers

HR pros push for paid leave policies

The Society for Human Resources Management (SHRM) is leading the way in a debate over a U.S. workplace flexibility policy that meets the needs of both employees and employers. SHRM today announced its commitment to assisting in the development of a federal policy in a letter to all U.S. Senators and Representatives.

"We believe employers should be encouraged to provide the paid leave their workforces need, and let employees decide how to use it," wrote SHRM CEO and President Laurence O'Neil. "Providing some agreed-upon amount of paid leave for workers should be considered as a way for employers to satisfy federal, state and local leave requirements." (PR Newswire)

It’s predicted that Congress and the Obama Administration will promote “paid sick leave” legislation this year because many believe current labor laws have fallen behind the times. Along with SHRM, they believe the current labor laws must adapt to the changing needs of a diverse and mobile workforce.

SHRM’s “Principles for a 21st Century Workplace Flexibility Policy” was also issued to Congress and the Administration, encouraging lawmakers to create a federal leave policy that encourages employers to voluntarily provide paid leave.

"SHRM believes employers, not the government, are in the best position to know the benefit preferences of their employees," O'Neil said. "HR professionals have decades of experience in designing and implementing programs that work for both employers and employees. We're eager to share this expertise with policymakers and welcome a positive dialogue on a workplace flexibility policy for the 21st Century."

The organization seeks a federal policy that would:

• Encourage employers to offer uniform and coordinated paid leave;
• Create administrative and compliance incentives for employers who meet the leave standard;
• Provide certainty, predictability and accountability for employers and employees; and
• Allow for different work environments, industries and organizational size.

Research data also released today by SHRM reveals that most U.S. employers currently provide some form of paid vacation leave for full-time employees. The survey of more than 500 randomly polled HR practitioners showed that nine out of 10 respondents provide paid vacation leave, eight out of 10 provide sick leave and 42% offer leave through a paid time off (PTO) program for full-time employees.

"Solid benefits program makes it easier for organizations to attract and retain great employees," O'Neil said. "Both employers and employees want a workplace characterized by fairness, balance, flexibility and freedom of choice. We're ready to take the lead in working with all parties to find a solution for America's workers, their families and employers."

Do you agree with SHRM’s push for setting a new policy on workplace leave? What types of paid-time-off benefits does your organization currently offer full-time employees?

HR pros push for paid leave policies

Obama delays E-Verify requirement

President Obama has delayed the effective date of a new rule that would require government contractors to verify the immigration status of their employees using the federal government’s E-Verify electronic employment eligibility verification system. The new effective date is June 30, 2009.

E-Verify is the U.S. Citizenship and Immigration Services’ (USCIS) system that federal contractors would be required to use to verify the eligibility status of new hires and existing employees to work in the U.S.

Obama’s administration pushed back implementation of the new E-Verify rule in order to complete an administration review of the requirement, which is also the subject of a federal lawsuit, according to a Federal Register notice published Friday.

This extension will mark the third delay in the effective date of the requirement, which was originally scheduled to take effect January 15, 2009.

Obama delays E-Verify requirement

ADA questions arise after new hire is found having conversations with herself

What do you do when an otherwise perfect new employee starts acting a little “off” after only a few months on the job?

Here’s the situation: A good friend, we’ll call her “Jane,” was hiring for an entry-level sales position about a year ago. She interviewed a candidate who was friendly, articulate, had a steady work history and seemed to be perfect for the job.

After a few weeks of training, employees in her training class and the instructor expressed some concern that the individual was slightly “off.” No one could pinpoint exactly what was wrong, so she remained in training and on course for employment.

About six months later, HR began receiving complaints about the new employee’s strange behavior. Among the various complaints, she had been seen talking to herself in the hallways and break room. Other complaints explained how she was spending an excessive amount of time in the bathroom, having hour-long conversations with herself in the mirror.

Jane contacted Employee Health and the employee was removed from the workplace after going through a complete mental health evaluation.

Though the situation was rather strange and unfortunate, it also brought up some legitimate legal concerns, specifically regarding the Americans with Disabilities Act (ADA):

• What are the ADA consequences if you hired someone and then discovered this behavior on day two? Can you dismiss them?
• Do ADA accommodation requirements come into play? Is there a time frame? Or is it from the moment of hire? What about before the hire?
• If she was otherwise best qualified, can you refuse to hire solely based upon her mental illness?

We ran Jane’s situation and our ADA accommodation questions by the G.Neil legal team to get a better understanding. Generally speaking, here’s what employers should know:

The ADA makes it unlawful to discriminate in employment against a qualified individual with a disability. To be protected from employment discrimination under the ADA, the employee must be disabled (as defined by the ADA) and qualified to perform the essential functions of the job, with or without reasonable accommodation. Disabilities recognized by the ADA may be mental or physical.

Qualified means two things - first the employee must satisfy your requirements for the job, such as education, employment experience, skills or licenses. Second, the applicant or employee must be able to perform the essential functions of the job with or without reasonable accommodation.

If the disabled employee is considered disabled as defined by the ADA and can perform the essential functions of the job with/without a reasonable accommodation, the employee is protected under the ADA and cannot be terminated or not hired solely because of his/her disability.

Reasonable accommodations can include nearly anything, depending on the individual's disability. Examples of common accommodations include:

• Making existing facilities readily accessible to and usable by individuals with disabilities
• Job restructuring or reassignment to a vacant position
• Acquiring or modifying equipment or devices
• Adjusting or modifying examinations, training or policies
• Providing qualified readers or interpreters
• Modified work schedules or leaves of absence

Employers are not required to provide an accommodation that would cause the business an "undue hardship." Undue hardships usually occur when an accommodation would cost too much (based on the company's resources) or would substantially interfere with business operations. This is a legal determination that must be made on a case-by-case basis by the company human resources department and/or legal counsel.

An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment. The individual does not have to mention the ADA or use any "trigger" words like "reasonable accommodation" to begin the process. Instead, he or she only has to give you enough information to alert you to the fact that he or she needs an adjustment because of a medical condition.

Requests do not need to be in writing or take any particular form; however, you should have individuals make the request in writing so that the information is documented for future use.

Generally, it is the disabled individual's responsibility to alert you to the need for any accommodation. You are not required to accommodate any disability you do not know about. However, you may initiate the accommodation process if you have noticed a change in the ability of a person with a known disability to perform the job.

The definition of disability was expanded under the new Americans with Disabilities Amendments Act (ADAAA). G.Neil’s updated ADA Facts Sheet is a simple resource to help explain the most recent ADA changes, the process for requesting accommodation, what qualifies as reasonable and more. The ADAAA went into effect on January 1, 2009, read more on how the changes affect your business.

What would you have done in Jane’s situation? Are there any other legal issues that would affect your decision?

ADA questions arise after new hire is found having conversations with herself

Reminder: New Form I-9 effective April 3

Next Friday, April 3, 2009, employers must start using the revised Form I-9 for Employment Eligibility Verification.

The new I-9 form was originally scheduled to take effect on February 2, but the U.S. Citizenship and Immigration Services (USCIS) delayed implementation for 60 days for further review.

Employers should continue using the current Form I-9 until April 3 and should prepare to use the new version beginning April 3.

Completing the I-9 form is mandatory for all new employees hired to work in the U.S. and the updates reflect numerous changes in the list of acceptable documents employers may use to verify an applicant’s work eligibility status.

The new Form I-9 reflects several changes, including:

• Expired documents are no longer considered acceptable proof of identification or work authorization.
• Three documents were removed from List A of the List of Acceptable Documents: Form I-688, Temporary Resident Card, Form I-688A, Employment Authorization Card, and Form I-688B, Employment Authorization Card.
• Foreign passports with machine-readable visas for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) were added to List A.
• The new U.S. Passport card was added to the list of acceptable employment eligibility verification documents.

Employers who fail to use the revised Form I-9 by April 3, 2009, may be subject to violation fines. Neglecting to fill out an I-9 form for every employee, or filling out forms incorrectly , can result in up to $1,100 for every incorrect form.

Order the updated I-9 form with detailed tip sheets to ensure your company is in compliance with federal recordkeeping requirements. More tools and information on completing your I-9 forms correctly are available in the ComplyRight I-9 Recordkeeping Kit.

Reminder: New Form I-9 effective April 3

DOL issues model COBRA notices for employers

Late last week the Department of Labor (DOL) issued four model notices that employers can use to explain federal premium subsidies available under COBRA.

As part of the economic stimulus plan President Obama signed into law in February, employees who were involuntarily terminated between September 1, 2008, and December 31, 2009, are eligible to retain their group health coverage for a period of up to nine months by paying a portion of the COBRA premium.

Involuntarily terminated employees must pay 35 percent of the COBRA premium and employers must front the money for the remaining 65 percent. Employers will pay the insurer directly, then claim it as an offset against payroll tax liabilities. Payroll will then report any subsidies and take the offset on an updated Form 941.

"Our action today gives workers and their families useful information on their right to receive the COBRA subsidy and makes it easier for employers and plans to meet their notice obligations. Given the current economic situation facing dislocated workers and their families, it is very important that individuals do not lose their group health coverage," said Alan D. Lebowitz, deputy assistant secretary of labor for the department's Employee Benefits Security Administration (EBSA).

Employers can send the DOL’s model notices to COBRA beneficiaries advising them of the subsidy and how they can enroll for coverage.

Designed to fit different situations, the four COBRA model notices include:

• A general or “full” notice to be given to beneficiaries who lost group coverage between September 1, 2008, and December 31, 2009.
• An abbreviated general notice that would be for beneficiaries who are currently receiving unsubsidized COBRA.
• An alternative notice explains the right of individuals working in states with continuation coverage laws, or “mini-COBRA” laws, which apply to employers with fewer than 20 employees.
• A notice of extended election periods for eligible individuals who lost their jobs before the stimulus plan was signed into law, between September 1, 2008 and February 16, 2009, and declined or discontinued COBRA coverage at the time.

Each package includes information of the premium reduction provisions, a series of questions and answers, and which forms to use in requesting the premium reduction or COBRA coverage.

More information on the COBRA subsidy:

• Stimulus plan subsidizes COBRA, expands unemployment insurance
• IRS releases info to help employers claim COBRA credit

DOL issues model COBRA notices for employers

EEOC accepting public comment on proposed GINA rules

The U.S. Equal Employment Opportunity Commission (EEOC) published a Notice of Proposed Rule Making on February 25, 2009, implementing employment requirements of the Genetic Information Non-Discrimination Act of 2008 (GINA). The EEOC is seeking public comment on the notice.

“The addition of genetic information discrimination to the EEOC’s mandate is historic, and represents the first legislative expansion of the EEOC’s jurisdiction since the Americans with Disabilities Act passed in 1990,” said Acting EEOC Chairman Stuart J. Ishimaru in a press release. “We welcome the opportunity to implement important provisions of this landmark legislation, and to expand the promise of equal opportunity in the workplace for everyone.”

The proposed rule provides additional guidance regarding some of the terms used in GINA. For example, the rule defines “employee” to cover not just current employees, but also applicants and former employees.

It also clarifies that drug and alcohol tests are not “genetic tests,” and invites comments on the scope of the term “genetic test,” specifically, “how the term should be applied, whether the proposed rule should be more or less expansive, and whether it or the preamble should provide examples of what should be included or excluded.”

The proposed rule also specifically mentions that the EEOC will update its EEO poster to include information regarding GINA. Final regulations must be completed by May 21, 2009.

“GINA is an important piece of legislation. As a deliberative body, we want to ensure that the intent of Congress is properly carried out through our regulations. Public comment on this NPRM is a critical part of that process. We look forward to a vigorous and thoughtful review,” said acting EEOC Vice Chair Christine M. Griffin.

The EEOC set up a 60-day public comment period on the proposed rule-making. Comments will be accepted through May 1, 2009.

You may submit comments by accessing the Federal eRulemaking Portal at http://www.regulations.gov. Comments will also be accepted by mail and fax. Read more instructions on submitting comments here.

For more information on the GINA regulations, read:

President signs Genetic Information Non-Discrimination Act

Genetic non-discrimination law includes increased FLSA child labor penalties

EEOC accepting public comment on proposed GINA rules

Stimulus plan subsidizes COBRA, expands unemployment insurance

President Barack Obama signed the $787 billion stimulus package into law yesterday hoping to provide a boost to the nation's continuing recession.

"I don't want to pretend that today marks the end of our economic problems, nor does it constitute all of what we're going to have to do to turn our economy around," said Obama, who signed the bill at the Denver Museum of Nature & Science, underscoring its hope of creating environmentally-friendly jobs.

"But today does mark the beginning of the end; the beginning of what we need to do to create jobs for Americans scrambling in the wake of layoffs; the beginning of what we need to do to provide relief for families worried that they won't be able to pay next month's bills; the beginnings of the first steps to set our economy on a firmer foundation, paving the way to long-term growth and prosperity." Read the full Boston Globe story.

The stimulus plan contains specific measures that will effect most businesses across the country, including a COBRA subsidy for laid-off workers, hiring incentives and new HR requirements.

Roughly $21 billion of the stimulus package is available to help workers who have been laid off to keep their employer-provided health insurance through COBRA, the federal law that gives unemployed workers the right to maintain their employer health insurance after a layoff.

The federal government will pay 65 percent of COBRA premiums for a period of nine months for employees who are laid off from September 1, 2008 through December 31, 2009. Employers will receive a payroll tax credit to offset the subsidy. Employers must notify former employees who are eligible for the new subsidy by March 1.

Documents will have to be updated as the new rule requires that information on the COBRA subsidy is to be included in employers' COBRA notices.

The stimulus also outlines tax benefits for hiring certain types of workers. If your company hires an unemployed military veteran or a person who didn’t finish high school, you could receive a $2,400 per employee tax credit as part of the Work Opportunity Tax Credit. The two new classes of qualified workers were added to the “target group” of disadvantaged workers.

Other HR requirements included in the stimulus plan:

• An increase of weekly unemployment benefits by $25.
• An extension of the temporary emergency unemployment compensation program through December 2009. The program provides up to 33 weeks of extended unemployment benefits.
• Unemployment compensation to workers who leave an employer for "compelling family reasons," such as domestic violence, illness or disability of an immediate family member.

As the Department of Labor releases more information on the compete details of the stimulus plan and what will be required of businesses, G.Neil's legal team will be there to help make sure your organization is fully compliant.

Please check back often or subscribe to our blog for the latest updates on how the stimulus plan impacts your business.

For more on how the stimulus package will impact your business, read:

USA Today - Employers fear cost of health insurance for jobless workers

HR Morning - Obama stimulus package contains 6 big paperwork changes for you

Boston Globe - Stimulus is signed as storm builds

About.com: Human Resources - Economic stimulus package and COBRA

Stimulus plan subsidizes COBRA, expands unemployment insurance

FMLA changes: Survey shows employers lack communication

Less than one third of employers have discussed the recent changes to the Family and Medical Leave Act (FMLA) with their employees, according to a survey by Compensation.BLR.com and HR.BLR.com.

Survey respondents revealed that:

• 40% had not communicated the FMLA changes to employees.
• 32% said while they haven’t communicated the changes yet, they plan to do so.
• 28% said they had already communicated the recent changes to the FMLA to employees.

The U.S. Department of Labor (DOL) published the new FMLA rules on November 17, 2008 and they became effective on January 16, 2009. The changes to the FMLA regulations introduced a slew of changes that employers and employees need to be aware of.

Many of the changes were designed to improve communication between employers and employees. The new FMLA ruling includes clarifications and new requirements on how and what employers must communicate to employees. It also includes clarifications and new requirements on when and how employees notify their employer on their need for FMLA leave.

The final rule includes benefits for some military families that give special job-protected leave rights to family members of injured service men and women, and also helps families of members of the National Guard and Reserves manage their affairs when the service member is called to active duty.

For a more detailed breakdown of the changes to the FMLA, read this earlier post: FMLA regulations, what employers need to know.

To avoid the most common mistakes when interpreting the new FMLA rules, take a look at the ComplyRight Now E-Guide: New 2009 FMLA Regulations - What Employers Need to Know. This downloadable guide provides a complete overview of the new rules and employers’ responsibilities under the FMLA.

FMLA changes: Survey shows employers lack communication

DHS postpones new Form I-9 to April 3

Beginning Monday, February 2, 2009, all U.S. businesses were scheduled to update their Employment Verification practices to incorporate new standards for documentation and newly updated I-9 Forms. However, late in the day on Friday, January 30, the Department of Homeland Security (DHS) extended another 30-day comment period for the new rules and pushed back the scheduled update by two months, instructing businesses to resume their use of the previous guidelines and I-9 Forms.

This move caused confusion among hiring managers and Human Resources departments across the country. Within just the past few weeks, businesses had been scrambling to receive and distribute the recently released updated I-9 Forms to meet the February 2nd deadline. In doing so, many have discarded the previous forms believing them to be outdated.

Completing an I-9 Form is mandatory for all new employees hired to work in the United States and the scheduled update reflected several changes in the acceptable documents employers can use to verify an applicant's eligibility to work. The retraction and re-instatement of the old forms has employers once again scrambling to respond and replace forms thrown away last week.

Ashley Kaplan, Labor Law Compliance Attorney for G.Neil, received the DHS announcement Friday evening and immediately recognized the potential challenges.

“We worked overtime last week to ship out the updated forms to our customers to begin using on February 2, and now need to get back to them with new instructions,” Kaplan explains. “We’re providing a free pdf of the previous I-9 Form and instructions to our customers who purchased the updated forms. We’ll also closely monitor the extended review period in case further changes occur before the April 3rd deadline.”

Learn more about the most recent changes in our new Form I-9 Q & A.

DHS postpones new Form I-9 to April 3

OSHA posting deadline: Are you ready for February 1?

Beginning February 1, employers must post a summary of the total number of job-related injuries and illnesses that occurred last year, according to the Occupational Safety and Health Administration (OSHA).

OSHA requires employers with more than 10 employees to post the injury and illness summary (OSHA Form 300A) from February 1 to April 30, 2009. The summary must list the total number of job-related injuries and illnesses that occurred in 2008 and were logged on the OSHA Form 300.

Employers must also include information about the annual average number of employees and total hours worked during the calendar year to help calculate incidence rates. If there were no injuries or illnesses in 2008, you must enter “zero” on the total line.

A company executive must sign the Form 300A and it should be displayed in a workplace common area where notices to employees are usually posted. Failure to post the annual summary could result in citations and penalties.

Though they are not generally required to file the records with OSHA, employers must document workplace injuries using Forms 300 and 300A and keep the forms at the worksite for a five-year period. Forms should be readily available to employees and OSHA inspectors.

Employers with 10 or fewer employees and some employers in certain industries are usually exempt from federal OSHA injury and illness recordkeeping and posting requirements. View the full list of exempt industries here on the OSHA Web site.

During Fiscal Year 2008, OSHA logged 87,687 violations of its standards and regulations for worker safety and health across the nation. More than 67,000 of those violations were cited as “serious,” according to an agency press release.

"Workplace inspections and issuing citations are a critical part of OSHA's balanced approach to improving workplace safety, but the real test of success is saving lives and preventing injuries, " said acting Assistant Secretary of Labor for OSHA Thomas M. Stohler.

OSHA conducted close to 39,000 worksite inspections last year, exceeding the agency’s enforcement goal by 2.4 percent.

Based on preliminary data from 2007, the workplace fatality rate has declined 14 percent since 2001, according to Stohler. Since 2002, the workplace injury and illness rate has dropped 21 percent. Both statistics mark all-time lows.

Stohler pointed out that such success is due to OSHA’s strategic approach to enforcement. The agency achieved their goal by targeting the most hazardous workplaces while using education, training and cooperative programs to improve overall OSHA compliance.

For more information on OSHA recordkeeping requirements, take a look at these helpful articles from G.Neil’s HR Library: (All articles are free and require no registration.)

• Keep OSHA Forms Up to Date and Accurate
• New Year’s Resolution: A Safe and Healthful Workplace
• The Newer the Employee, the Harder the Fall - New Employees at Greater Risk for Injury

OSHA posting deadline: Are you ready for February 1?

New Form I-9 effective February 2

Employers have just over a month left to comply with the latest changes to the Employment Eligibility Verification (Form I-9).

The U.S. Citizenship and Immigration Services (USCIS) published the interim final rule to streamline the Form I-9 process in the Federal Register on December 17, 2008. There are several changes in the new I-9 form, including new verification guidelines and a redefined list of acceptable proof of identification documents.

Beginning February 2, 2009, all employers are required to use the revised Form I-9 for verification of new employees and re-verification of existing employees.

There are several changes in the new I-9 form, including:

• Expired documents are no longer considered acceptable proof of identification or work authorization.
• Three additional documents were eliminated from List A of the List of Acceptable Documents.
• Foreign passports with machine-readable visas for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) were added to List A.
• The new U.S. Passport card was added to the list of acceptable employment eligibility verification documents.
• Revisions to the employee attestation section of the Form I-9.

Employers who fail to use the revised I-9 form by February 2, 2009 may be subject to violation fines. Keep your company in compliance by ordering the updated Form I-9 today.

New Form I-9 effective February 2

DOL releases updated FMLA poster

On December 18, 2008, the U.S. Department of Labor (DOL) issued a new Family and Medical Leave Act (FMLA) poster based on revisions published in November 2008. Employers with 50 or more employees, and all public sector employers, are required to update their mandatory employee and applicant labor law postings with the new FMLA poster.

The new FMLA poster outlines how the expanded FMLA provides job-protected leave for the spouses, children or parents of members of the armed forces called to active duty in the U.S. military. Additional FMLA rights for employers and workers are clarified on the new poster, too.

Along with the FMLA poster, employers must post all other mandatory federal and state labor law posters, a burden that entails monitoring up to 20 different posters from as many as seven different agencies. And with the incoming Democratic administration expected to serve a more regulatory function with labor issues and workers’ rights, the level of labor law posting enforcement is expected to increase.

That’s why many employers are turning to third-party poster providers to maintain their posting compliance.

Poster Guard Compliance Protection, guaranteed by G.Neil, offers employers the easiest way to keep up to date with all federal and state posters. In addition to a poster set containing all required postings, employers automatically receive a new poster any time a federal or state posting regulation changes. Poster Guard Compliance Protection also offers a 100% Compliance Guarantee against fines, online auditing tools and dedicated customer support.

DOL releases updated FMLA poster

The ADA Amendments Act, Part 2: How employers should prepare

In our last post, we examined the major changes the Americans with Disabilities Amendments Act will have on the original law when it becomes effective on January 1, 2009.

The new amendments make major changes to the original ADA, including what is considered a major life activity and the definition of disability. Employers must be aware of the changes and the effect they will have on their businesses. From the Word on Employment Law with John Phillips:

All we know now is that the realm of “the disabled” is about to be significantly enlarged. While it may be incorrect to say the new Act makes everyone disabled, we’ll be much closer to that point than we’ve ever been. Reasonable accommodation requests will become more frequent and more complicated. Disability discrimination charges and litigation will increase dramatically. Given the new Act’s language, it’ll be difficult for courts to dismiss these cases without letting a jury decide them.

In many respects, we’re starting all over with disability discrimination. If the Supreme Court has, in the past, given employers an advantage in these cases, the advantage is about to be given to employees.

If you haven’t started already, employers should be preparing for how the changes to the ADA will effect employment processes, accommodating employees with disabilities and compliance requirements.

In a recent Workforce article, author Tina M. Maiolo explained the next steps employers should take to prepare for the upcoming ADA changes. Here are her seven steps to compliance with the ADA Amendments Act:

1. Assume every employee is healthy. Presume nothing, especially whether the employee has any type of impairment.


2. Assume all employee impairments fall under the ADA. When an employee claims to have an impairment, always assume that it is qualified as a disability under the ADA Amendments Act. Employers are “safer to assume from the outset that an impairment qualifies as a disability than trying to argue later that it does not.”


3. Accommodate employee impairments. After a claim is made, be sure to make all reasonable attempts to accommodate the employee’s impairment. Unless the accommodation creates “undue hardship,” by being so burdensome or expensive that it changes the nature of the business, employers must be accommodating.


4. Review and edit job descriptions. “An employer’s defense against an ADA Amendments Act claim is likely to rest on whether the disabled employee was "qualified" to perform the essential functions of his or her job.” Write an accurate and detailed job description from the beginning that clearly defines essential job functions.


5. Begin ADA Amendments Act training. “HR should treat the ADA Amendments Act as an entirely new law.” Everyone involved in the hiring process, including HR and managers should go through training to understand the changes.


6. Throw away, modify or create disability policies. Either start from scratch writing new disability policies, or modify your existing policies to reflect the latest ADA changes. It would be best to have these done before the law goes into effect on the first of the year.


7. Make modifications as the courts interpret the new amendments. “The impact of the ADA Amendments Act will not be static,” they will continue to evolve over time. Stay on top of the latest changes and your business will be better protected.

Understanding the changes to the ADA is the first step to compliance. Once the law goes into effect on January 1, 2009, it is up to employers to choose to follow what is required of them under the law.

If you’re looking for help managing employee accommodation requests, the ComplyRight ADA Administration System contains all the forms and information employers need to comply. Complete with forms, tip sheets and valuable best practice information, the system can help you manage any request.

The ADA Amendments Act, Part 2: How employers should prepare