Legal Compliance Questions of the Week

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How do I handle missing I-9 Forms?

Question:

My company recently conducted an I-9 audit and found that we are missing approximately a dozen I-9 forms. I don’t know if they were accidentally purged, filed incorrectly, or never completed. Can we ask the affected employees to fill out another I-9? If so, do we ask them to backdate it or use the current date?

Answer:

There are two types of I-9 errors: (1) technical and procedural errors and (2) substantive errors. Technical and procedural errors can be corrected. An example is forgetting to record a document title, which can easily be fixed – and fines are discretionary. A substantive error cannot be corrected. If audited, your company will likely face a fine if the statute of limitations has not run. Examples of substantive errors include failing to complete I-9 paperwork or not signing or dating Section 2 of the form.

Substantive Errors
In a recent decision, the U.S. Department of Justice’s Chief Administrative Hearing Office noted the difference between technical/procedural violations and substantive errors. The agency explained that the Immigration and Nationality Act (INA) was intended to relieve employers of liability for certain minor and unintentional violations but wouldn’t act as a shield to avoid its basic requirements. When an I-9 form isn’t properly kept or completed, the violation is considered substantive and therefore uncorrectable.

If an I-9 form is lost, destroyed, or not maintained as required by the INA’s retention requirements, the appropriate action is to come into compliance with the law as quickly as possible. Once identified, a missing I-9 form should be completed by the employer and the affected employee immediately. This won’t correct the error, but it does demonstrate a good-faith effort to comply with the law, which may be considered if penalties are assessed.

Penalties
Failure to comply with I-9 verification and document retention requirements could result in a penalty. The minimum penalty for a first offense is $110; the maximum penalty is $1,100. Penalties are assessed based on several factors, including:

  1. The size of the employer
  2. Any good-faith efforts undertaken by the employer
  3. The seriousness of the violation
  4. Whether the individual involved is an unauthorized alien
  5. Any history of previous violations by the employer

The statute doesn’t require that equal weight be given to each factor, nor does it rule out consideration of additional factors.

It’s important to never backdate an I-9 form. Employers that make false statements or attestations to satisfy the employment eligibility verification requirements may be fined, imprisoned for up to five years, or both (and could be higher in certain fraud cases). If an investigation reveals that an individual knowingly committed or participated in acts relating to document fraud, additional fines may be imposed. For a first offense, the fine starts at $375 and can go as high as $3,200 for each fraudulent document that is the subject of the violation. For subsequent offenses, the fines range from $3,200 to $6,500 for each fraudulent document that is the subject of the violation. “Fraud fines” are imposed in addition to penalties for substantive errors.

Bottom line…always ensure compliance within the appropriate three-day verification period. While substantive violations are not correctable, every effort should be made to ensure good-faith compliance when a discrepancy is uncovered. If a discrepancy is discovered, you are at risk of incurring substantial fines in the event of an audit. Trying to correct an error after the fact by backdating or tampering with incomplete or missing I-9’s will only worsen the problem.

Recordkeeping is one of the more mundane tasks associated with Human Resources, but is extremely important and can get you into hot water if not done properly. Keeping appropriate recruiting and hiring documentation is vital to proving, if needed, your employment processes are compliant. Strategic HR, inc. has a great online tool that’s affordable, easily downloaded and ready for immediate use. Our Recordkeeping desktop reference has everything you need to see at-a-glance recordkeeping requiements mandated by law. Visit our Desktop Reference page to learn more.

 

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FMLA Expiration and COBRA

Question:

We have an employee who is on FMLA to receive an organ donation and the leave is expiring soon. At what point do we offer the employee COBRA, and for how long?

Answer:

It is generally required by employers to offer health care coverage under COBRA law when the employee is:

  • No longer eligible to receive benefits of employer-provided group health plan
  • No longer protected by federal or state leave laws

It is common for employee coverage eligibility to expire after 12 weeks of leave under FMLA and any additional leave where the employer is reasonably accommodating the employee under the Americans with Disabilities Act.

Strategic HR, inc. has the answers to all of your tough Benefits and Compensation related questions. Whether you need an analysis of your current benefit offerings or are looking to create a cost-effective recognition and rewards program, strategic HR inc. can do the job. Please visit our Benefits & Compensation page for more information.

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Can I backdate FMLA paperwork?

Question:

Can I backdate FMLA paperwork to the date at which the employee went on Workers’ Compensation?

Answer:

In a word, “no” – FMLA cannot be backdated. That’s why it is so critical that HR is on top of any types of absences that may qualify for FMLA. If an injury that falls under Workers’ Compensation also qualifies as a “serious medical condition” under the Family and Medical Leave Act, any time missed can be counted against the 12 week leave allotment an FMLA qualified employee is entitled to receive. When such an event occurs, send the appropriate notifications (found on www.dol.gov), and make sure you document that you have done so.  Then follow up appropriately for the certifications. The clock does not start ticking on FMLA until the notifications have been sent – whether it is immediately after the incident, or two months later. Keep in mind, if an employee returns to work on light duty, from a Workers’ Comp injury, that is no longer time counted against Family Medical Leave.

The world of employee leave is a complex one, often involving Family Medical Leave, Workers’ Compensation and the Americans with Disabilities Act. Many times, the different types of leaves overlap. Make sure you consider all appropriate legislation when an employee is absent from work before taking any type of adverse employment action.

FMLA, the ADAAA and other labor laws can be difficult to interpret, let alone enforce. That’s where strategic HR inc. has you covered. We bring years of experience and know-how to the table. We can assist you with your tough compliance issues and help you sleep more soundly at night. Visit our Compliance page to learn more.

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How To Conduct A Safety Audit

Question:

I have a safety committee comprised of all new members. We need to conduct a safety audit of our facility. How should we structure our audit?

Answer:

The most important part of a safety and health audit is to make some specific decisions early on. Questions must be answered such as:

  1. Who is going to do the audit? Are you going to do it internally or involve an external party? If internal, who is involved specifically – HR? A team of safety and healthy experts in a committee?
  2. What are you actually going to audit – a part of safety and health in the organization or all aspects? If you are interested in doing a full audit, it is best to pick a specific area to work on – one at a time. Pick a monthly task to audit specifically (e.g. hazardous communication standard, lock out/tag out, emergency evacuation, etc.) and focus on that as an audit topic each month. Focusing on one topic will allow you to dig deeply into the standard and ensure compliance at all levels.

Once you are ready to audit and you know who and what is going to be a part of the audit, you need a clear checklist or questionnaire to use to audit each of the various aspects. In general, the audit should include the following items:

  • Determine what requirements you are supposed to meet – look at all areas of legislations including state and federal.
  • Assess whether or not you are meeting those legal requirements.
  • Review your documents to ensure you have good documentation as well as best practices in place in recordkeeping.
  • Identify any areas of risk in the workplace and determine how the organization attempts to minimize those risks.
  • Identify strengths and weaknesses in your safety procedures.
  • Recommend areas of improvements necessary for compliance and best practices.
  • Document the implementation of those recommendations to ensure they do not become a legal liability in the future.

Once you have these pieces in place you are ready to audit – good luck!

Do you worry about doing what is right for your company and right for your employees while being legally compliant? Strategic HR, inc. understands your concerns with the well-being of your employees and the legal compliance of your organization. Conducting an audit of your Health and Safety function is a key component to making sure you are compliant. Let us help you with your audit using our tried and true practices. Please visit our Health, Safety & Security page or Legal Compliance page for more information on any of these services.

 

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Payroll Recordkeeping

Question:

I recently received a letter from my payroll provider reminding me to download my payroll records from last year before they were purged. I thought payroll records had to be retained for a certain number of years?

Answer:

You are correct – payroll records need to be maintained for at least 5 years following termination. However, it is the employer’s responsibility to maintain these records and not the payroll provider. We have heard various accounts of the length of time a third party payroll company will keep such records. To be safe, check with your provider to learn their policy on keeping records and don’t assume they are following the federal guidelines – they are not legally required to do so. Then make sure you are keeping sufficient copies of these records in accordance with federal law.

We asked our payroll provider – Think Pay – how they handle payroll recordkeeping.  Think Pay confirmed that they are not required by law to maintain records for clients beyond one year. However, they have not purged any client records in the 10 years that they’ve been in business. Plus, they send clients a CD at the end of each year containing all records for the year (including quarterly reports, tax filings, and W2s).

Recordkeeping is full of “if this, then that” situations. You will often hear us say “it depends” when asking about personnel files and recordkeeping. Keep the guesswork out of keeping your files in order and up-to-date. Strategic HR, inc. has a handy desktop reference ready to guide you on the documents you can keep together in an employee file and how long you need to keep them. Visit our HR Store to request a copy of our Recordkeeping reference.

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Summary of Benefits Coverage

Question:

It sounds like the Health Care Reform is requiring employers to distribute Summary of Benefits Coverage documents for plan years beginning September 23. What do I need to know?

Answer:

You are right!  Starting September 23, the Accountable Care Act (aka Health Care Reform) requires employers to distribute the new Summary of Benefits Coverage (SBC’s) documents.

At first glance, the SBC’s seem like an easy task to check off your to-do list. Most health care vendors are filling in the government-designed templates for their clients. All you have to do is hang them on your site or mail to employees. Easy, right?

Well, not so fast.

Since we create and maintain Summary Plan Descriptions for our clients, many have asked us to review the SBC documents sent to them by their vendors. We have found some vendors are providing base documents, but are not including the specific nuances designed into the plans.

When you get your SBC’s, closely check some of the following areas:

  • Penalties: If you have penalty fees, e.g. for not pre-certifying a hospital stay, the fees need to be in the Limits and Exceptions box on the same line where the coverage is listed.
  • Limitations: If your plan has unique limitation amounts, e.g. for speech and physical therapy or home health and hospice service, make sure they are listed correctly, again on the same line where the coverage is listed.
  • Prescription carve outs: If your prescription coverage is carved out from your medical plan, your medical vendor probably won’t complete that section. You will need to complete that part of the template and ask your prescription vendor to review it for accuracy.

For the initial year, the Department of Labor has indicated it wants to work with plans to get to compliance and is not focusing on imposing penalties. Therefore, you might not be concerned about meeting every regulation spelled out in the government’s 15-page instructions. However, keep in mind that you will probably pick up the same document next year, so it would probably be worth the time and effort to get it as accurate and complete as possible. As is true with most benefits and HR communications, the devil is in the details.

A special thanks to Elizabeth Borton, President of Write On Target, for sharing her expertise with us.  Sign-up on her website at to receive future communication blogs at www.writetarget.com. Or, you can contact her with questions at EBorton@WriteTarget.com or  937.436.4565 at extension 28.

Are you hesitant when it comes to navigating federally mandated rules and regulations? Strategic HR, inc. understands your uncertainty. Ask us for assistance for any of your benefits and compensation needs. Please visit our Benefits & Compensation page for more information on any of these services.

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Excessive Absenteeism

Question:

I have an employee with excessive absenteeism and tardiness due to her pregnancy. She has been with the company less than eight months. Per her physician’s request she has been asked to stop working and has asked us for a leave of absence for six to eight months.  The company can not afford to hold this position for such a long time. What are our legal obligations?

Answer:

Since each State has different State-specific laws, we’ll address your question from a federal perspective. You should also confirm your obligations with your respective State as they could be more restrictive.

From a federal viewpoint, you should be concerned with the Family Medical Leave Act (FMLA) and Pregnancy Act. Because this employee has not been employed an entire year, she is not eligible for FMLA protection. The Pregnancy Act only requires that you provide the employee the same treatment provided others with medical disabilities. So, as long as you are treating her equal to other employees with a short-term disability, you do not need to hold her position. The real issue to be addressed is her absence not her pregnancy.

Based on the limited information you have shared, unless your State has different laws, it appears your company has no obligation to hold the position for the employee.

Do difficult situations with employees keep you awake at night? Strategic HR, inc. understands how conflicts with employees can make or break your day (or a good night’s sleep). Call us when you encounter a difficult situation – we can help coach your managers, suggest solutions or advise you on a specific problem. Learn more about our Employee Relations services by visiting our Employee Relations page.

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SNOPA

Question:

What is SNOPA and how does it affect my company?

Answer:

On April 27, 2012, Rep. Eliot Engel, D-N.Y., introduced the Social Networking Online Protection Act (SNOPA).

The purpose of SNOPA is to prohibit employers, schools, and universities from requiring employees to disclose / share their username, password or other access to online content.   This Act would prevent employers from disciplining, discriminating against or denying employment to individuals based on the employer’s demand for this information. This applies to websites such as Facebook, MySpace and Twitter, and also protects email and any other personal user generated content.

Only time will tell if SNOPA is to be passed into legislation. But just in case it is, before you venture into this uncharted territory, think about why you need this information? Is it job related? Could asking for it invade the individual’s privacy? Is there another way to get the legitimate information that you need?

Too many new Labor Law changes to keep up with? Let strategic HR inc. help you navigate the employment law minefield. Ask us for assistance with any of your Legal Compliance needs. Please visit our Compliance page for more information or call us if you have a specific question or need.

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H-1B Versus At-Will Employment

Question:

We’re considering hiring an individual who needs sponsorship to work in the U.S. Do we need to be concerned that sponsoring an employee will alter the “at will” employment agreement?

Answer:

We asked immigration expert Christopher M. Pogue, Esq. with the Hammond Law Group, LLC to assist us with this question:

The holding in the case below re-affirms that sponsoring an H-1B employee alone does not change the nature of an employment agreement that is otherwise considered “at will.” The bottom line is that employer’s are not tying themselves to foreign national workers they employ simply by sponsoring the foreign national’s H-1B work visa.

On January 23, 2012, the United States Court of Appeals for the Third Circuit issued a decision in Edwards v. Geisinger Clinic. In this case, Dr. Philip Edwards, a licensed physician from the United Kingdom, argued that the at-will employment clause in his employment agreement with Geisinger Clinic was not valid. Instead, he stated that this contract guaranteed that he would remain employed by the Geisinger Clinic for at least three years because this was the time requested by the Geisinger Clinic when it petitioned for his H-1B. The Third Circuit rejected this argument. It noted that “sponsorship of an H-1B visa alone does not imply that the employer-sponsor has guaranteed employment for the visa’s duration.” Thus, an organization that sponsors an employee for an H-1B does not have a duty to employ the beneficiary throughout the duration of the H-1B validity period. Dr. Edwards’ other arguments also failed and the Third Circuit dismissed this appeal. The immigration effects of having an at-will employment agreement versus an express employment agreement can be crucial.

Our thanks to Christopher for providing a succinct response.

Don’t let immigration law worries keep you from hiring the most qualified individuals for your company. Sponsoring a foreign national worker can be easy with the right guidance. Let strategic HR inc. help you navigate the employment law minefield. Visit our Compliance page for more information on how we can assist you with Human Resource compliance issues.

 

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FMLA: The 50/20 Rule

Question:

I know that in order to follow the rules of FMLA, a private sector employer needs to have 50 employees for 20 or more weeks a year. I’m wondering how part time employees factor into this number; we currently have 34 full-time employees. We also hire a large number of seasonal workers: about 30 as of today. However, of those 30, 11 are year round part-time. Does a part time employee count towards the 50? Is it dependent on how many hours per week they work?

Answer:

According to the Department of Labor 29 CFR 825.105

A private employer is covered if it maintained 50 or more employees on the payroll during 20 or more calendar workweeks (not necessarily consecutive workweeks) in either the current or the preceding calendar year.

So an employee on payroll during the year, whether they work one hour or 40, counts as “an employee.” You will need to look at your total number of employees per week (both full-time and part-time) to see if you meet the 50 in 20 rule.

Once a private employer meets the 50 employees / 20 workweeks threshold, the employer remains covered until it reaches a future point where it no longer has employed 50 employees for 20 (nonconsecutive) workweeks in the current and preceding calendar year. For example, if an employer who met the 50 employees / 20 workweeks test in the calendar year as of September 1, 2008, subsequently dropped below 50 employees before the end of 2008 and continued to employ fewer than 50 employees in all workweeks throughout calendar year 2009, the employer would continue to be covered throughout calendar year 2009 because it met the coverage criteria for 20 workweeks of the preceding (i.e., 2008) calendar year.

Let strategic HR inc. help you navigate the employment law minefield. Ask us for assistance with any of your legal compliance needs. Please visit our Compliance page for more information on any of these services.

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Return To Work / Fit for Duty

Question:

We have an employee out on family medical leave (FMLA) for a serious health condition. If he provides medical certification from his physician that he can return to work with no limitations, can we require the employee to submit to further examination to see if he is fit for duty under the ADA? The employee is not claiming any disability and has requested no consideration under ADA, but we believe he might be unable to perform the job duties.

Answer:

Although the employee has provided medical certification that he is fit to return to work with no limitations, employers can request 2nd and 3rd opinions on FMLA issues.  Generally, we recommend that employers require everyone returning from FMLA to have an employer paid fit for duty physical by occupational health. To accomplish this, you would provide a job description to the physician and they physician reviews the employee based on the job requirements. From there you could pursue the ADA issue if necessary, but don’t be premature since no disability has been claimed yet.

FMLA, the ADAAA and other labor laws can be difficult to understand, let alone enforce. That’s where strategic HR inc. has you covered. We bring years of experience and know-how to the table. We can assist you with your tough compliance issues and help you sleep more soundly at night. Visit our Compliance page to learn more.

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FMLA – In Loco Parentis

Question:

I have an employee who wants to exercise FMLA rights to take her grandmother, who is seriously ill, to doctors’ appointments. Do I have to let her?

Answer:

The Family Medical Leave Act (FMLA) specifically states that an employee is eligible for leave for their own serious illness, or that of an immediate family member (child, spouse or parent). However, in June of 2010, the Department of Labor acknowledged “in loco parentis” status, in which someone functions as a parent on an ongoing, day to day basis, regardless of blood or legal relationship. In this circumstance, if the employee can demonstrate that the grandmother was “in loco parentis”, that she raised her as a parent might on an ongoing, day to day basis, then you she may be entitled to the request if she meets all other eligibility requirements.

Go to www.dol.gov for more information regarding the Family and Medical Leave Act.

Let strategic HR inc. help you navigate the employment law minefield. Ask us for assistance with any of your legal compliance needs. Please visit our Compliance page for more information on any of these services.

 

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H-1B Termination

Question:

What is an employer’s obligation when terminating an H-1B employee?

Answer:

Terminating an H-1B employee doesn’t have to be hard as long as you follow the rules.  An interesting case came out this year on this very topic. It was in regards to a company that sponsored an H-1B professional. The petition was approved, but the company chose not to hire the foreign worker after all and terminated him. Unfortunately the employer did not offer to pay for the employee’s travel home. The foreign national paid their own way home and left the country.

Two years later USCIS learned of the termination and canceled the H-1B. USCIS then found the company liable for back wages for the entire period, despite the fact that the employee had found another job.

Had the original company:

  1. Provided written notice to the foreign national of termination,
  2. Provided written notice to USCIS of the termination as soon as possible after the termination stating the date of termination, and
  3. Provided a letter of termination to the foreign national (preferably to sign) offering to pay for the cheapest flight back to the foreign national’s home country within a reasonable amount of time…

The company would have been on the hook for nothing if they had provided these things (instead of two years worth of wages).

All three elements must be met in order for the employer to get off the hook for back wages.  Just as a point of clarification, in point 3, an employer’s obligation is to pay for a flight for the foreign national employee within a “reasonable” amount off-time, not necessarily the next flight out to their home country. This will allow the employer to save money on the ticket and the foreign national time to pack and settle issues such as lease agreements or car payments.

An important side note is that the offer of payment for travel does not extend to the family of the employee. Also, the offer of travel expenses need not be accepted by the foreign national. Therefore it is best to have them sign a letter of termination that notes whether the foreign national accepts or rejects the offer to pay for travel. This is the safest course given this decision.

Thank you to Christopher Pogue with Hammond Law Group for this response.  This advice is intended for general information purposes, and should not be relied upon in individual cases. Please contact attorney Christopher Pogue with the Hammond Law Group at (513) 549-4420 or cmp@hammondlawgroup.com for legal analysis of specific situations.

NOTE:  There is no charge for an initial consultation with Christopher Pogue if you reference that you were referred by strategic HR inc.

Strategic HR, inc. knows that keeping abreast of legal compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by offering resources to help you identify and mitigate compliance issues, such as our HR Audit which helps identify trouble spots in your HR function.

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Requirements for an EEO-1 Report

Question:

How do I know if I have to file an EEO-1 Report and what are the requirements?

Answer:

The EEO-1 Report requires some employers to report the number of employees by job category, race, ethnicity and gender. Employers with 50 or more employees, who have government contracts totaling $50,000 or more, or employers without government contracts, who have 100 or more employees, must submit the report on or before September 30 for that year. The report should be based upon the number of employees for any pay period from July through September of that year, and may be filed online (preferred), or by mail.
Changes were made to the report in 2007 redefining several of the reporting categories. Additionally, employers are now asked to have employees “self-report” their status of gender, race, and ethnicity.

For more information on completing and filing the report, go to, http://www.eeoc.gov/employers/eeo1survey/index.cfm.

Labor laws are constantly changing and Strategic HR, inc. knows how difficult it can be to keep up. We offer a handy desktop reference that defines the different labor laws and how they apply to employers. Please visit our HR Store for this and other valuable desktop references.