No Stop-Loss Coverage Where Employer Failed to Provide COBRA Notice Following Qualifying Event
Under COBRA, an employee who loses health insurance coverage as a result of a qualifying event must be given an opportunity to continue coverage at his or her own expense. The employer generally is responsible for identifying when a qualifying event occurs and providing the employee with a timely COBRA election notice. Continuing an employee's coverage as an active employee outside of COBRA after a qualifying event may leave the employer paying out of pocket for medical expenses incurred by an employee.
For example, as a result of a Tennessee federal district court's decision in Clarcor, Inc. v. Madison Nat. Life Ins. Co., an employer will pay over $250,000 in uninsured medical expenses for an employee who was not given proper COBRA election notice when she was unable to return to work following the expiration of her FMLA leave. When the employee did not return to work after FMLA leave, contrary to the terms of the medical plan, the employer continued her medical coverage as an active employee while she was on short-term disability leave for another six months, at which time it offered her COBRA coverage.
The employer submitted a claim to its stop-loss carrier for reimbursement of medical expenses incurred by the employee while on STD leave. In turn, the carrier refused to reimburse the employer for expenses incurred after FMLA leave, on the grounds that the employee should have been offered COBRA upon the expiration of her FMLA leave, and that the policy excluded expenses where COBRA notice was not timely provided. The court agreed with the stop-loss carrier, holding that the employee was ineligible for coverage after her FMLA leave ended except through COBRA, and held that the stop-loss carrier did not have to pay the claim.
This decision highlights the importance of being familiar with and following the provisions of medical plan language with respect to eligibility for coverage in order to identify qualifying events, and to avoid exclusions of coverage under either stop-loss contracts or fully insured medical plans when an employee remains employed, but is no longer eligible for coverage outside of COBRA
Parker Poe, EmployNews, Issue 641, October 14, 2011
If you need assistance with your COBRA administration, please contact The Whitford Group or your agent immediately. TheWhitfordGroup@aol.com 704 298-2115
Saturday, October 15, 2011
Wednesday, October 12, 2011
The 4 Most Serious Sins of Documentation
NOTE: Don't miss "Jan's Tips" at the end of this article.
Rule number one in documentation, says attorney Allison West, is to include all the details, but you have to ignore that rule because of rule number two—be concise.
When doing your documentation, it's important to offer up all the facts, says West. Paper is cheap, she adds. However, at the same time, don't be so wordy that you ignore rule number two, which requires documentation to be concise.
West, principal at Employment Practices Specialists in Pacifica, California, offered her suggestions at SHRM's annual conference and exhibition, held recently in Las Vegas. Here are her tips on bulletproof documentation:
Avoid 'As you know' Memos
When you write "As you know," you're skimping on the details because you have previously discussed issues. That's dangerous, says West. "As you know" memos are typically vague and ambiguous, and they are open to interpretation. Bulletproofing documentation means including details and important facts each time you write. For example:
"As you know, we have discussed your attendance on numerous occasions. Each time you stated you would try harder."
This is a typical "as you know" memo. It means something to the sender, but not to other readers (like juries or federal agents).
It needs details, says West.
•What were the problems?
•When were the discussions?
•What expectations were discussed?
•What follow-up was planned?
Avoid sarcasm
Sarcasm is never going to look good to later reviewers of your documents. For example:
•You might actually be the only person in the history of our company to never get a performance bonus.
•Clearly you don't care.
•Do you really want to work here?
•I am not surprised by the poor quality of your work product.
Out of context, these comments just look mean. It's always better to write a straightforward presentation of the facts of the situation.
Avoid Starting Sentences with 'You'
When you start sentences with "you," it's probably not going to be a straightforward presentation. For example:
•You don't carry your load.
•You are not committed to your job.
A better approach from West: "I noticed on three occasions your team members asked you to assist them with updating the newsletter mailing list. Each time you refused. You may not realize that each time you say "no" without any explanation or fail to carry an even workload, the team members get frustrated and are forced to take on extra work. How would you feel in their shoes?"
Avoid Editorializing
Again, it's better to stick with the facts, says West. For example, say Beth explained she was late, again, because of car problems. You write:
•Beth is late again. More lame excuses.
Or say that Jorge is struggling to understand the new accounts payable software.
You write:
•Jorge is unwilling to put in the time to master the software.
Editorializing hurts the writer's credibility, shows bias, and indicates that the writer is uncaring about the employee's issues or success. "The jury will snarl at you," West says.
Instead:
•Stick with the facts
•Stick to a chronological time line
•Neutralize your tone
•Keep emotion out!
Summarized from Today’s HR Tip, written by Allison West, Attorney at Law
Jan’s Tips:
1.Avoid the use of acronyms unless you have identified their meaning with the first usage in the write up. People outside of your industry won't know what they mean and may skip over those entries or decide against you because your write up is too hard to understand. Believe me, it happens!
2.Avoid as much “he said, she said” as you can and still get the point across. People who do write ups often fail to identify the “he and she” to whom they are referring as the write up goes on. It’s confusing to the reader and quite frankly, boring.
3.Follow a chronological time line when detailing events.
4.Ensure you cite specific policy and procedure violations (employee handbook, job descriptions, etc.) and the impact the violation had on the company.
5.If this is not a terminating event, ensure you develop (with your employee) an action plan for improvement. Be specific, make it measurable and please, please follow up!
6.FOLLOW UP. Write ups are worthless without follow up. Not only will this employee not take you seriously your other employees won’t either.
7.Remember, it is highly unlikely that you and your employee will be the ONLY ones to read this write up. Regulatory agencies, attorneys and courts may also read it at some point. Make sure it will make sense four or six months from now.
If you or you know someone who needs assistance with any type of corrective action or other HR issues, contact The Whitford Group at TheWhitfordGroup@aol.com or 704 298-2115.
Rule number one in documentation, says attorney Allison West, is to include all the details, but you have to ignore that rule because of rule number two—be concise.
When doing your documentation, it's important to offer up all the facts, says West. Paper is cheap, she adds. However, at the same time, don't be so wordy that you ignore rule number two, which requires documentation to be concise.
West, principal at Employment Practices Specialists in Pacifica, California, offered her suggestions at SHRM's annual conference and exhibition, held recently in Las Vegas. Here are her tips on bulletproof documentation:
Avoid 'As you know' Memos
When you write "As you know," you're skimping on the details because you have previously discussed issues. That's dangerous, says West. "As you know" memos are typically vague and ambiguous, and they are open to interpretation. Bulletproofing documentation means including details and important facts each time you write. For example:
"As you know, we have discussed your attendance on numerous occasions. Each time you stated you would try harder."
This is a typical "as you know" memo. It means something to the sender, but not to other readers (like juries or federal agents).
It needs details, says West.
•What were the problems?
•When were the discussions?
•What expectations were discussed?
•What follow-up was planned?
Avoid sarcasm
Sarcasm is never going to look good to later reviewers of your documents. For example:
•You might actually be the only person in the history of our company to never get a performance bonus.
•Clearly you don't care.
•Do you really want to work here?
•I am not surprised by the poor quality of your work product.
Out of context, these comments just look mean. It's always better to write a straightforward presentation of the facts of the situation.
Avoid Starting Sentences with 'You'
When you start sentences with "you," it's probably not going to be a straightforward presentation. For example:
•You don't carry your load.
•You are not committed to your job.
A better approach from West: "I noticed on three occasions your team members asked you to assist them with updating the newsletter mailing list. Each time you refused. You may not realize that each time you say "no" without any explanation or fail to carry an even workload, the team members get frustrated and are forced to take on extra work. How would you feel in their shoes?"
Avoid Editorializing
Again, it's better to stick with the facts, says West. For example, say Beth explained she was late, again, because of car problems. You write:
•Beth is late again. More lame excuses.
Or say that Jorge is struggling to understand the new accounts payable software.
You write:
•Jorge is unwilling to put in the time to master the software.
Editorializing hurts the writer's credibility, shows bias, and indicates that the writer is uncaring about the employee's issues or success. "The jury will snarl at you," West says.
Instead:
•Stick with the facts
•Stick to a chronological time line
•Neutralize your tone
•Keep emotion out!
Summarized from Today’s HR Tip, written by Allison West, Attorney at Law
Jan’s Tips:
1.Avoid the use of acronyms unless you have identified their meaning with the first usage in the write up. People outside of your industry won't know what they mean and may skip over those entries or decide against you because your write up is too hard to understand. Believe me, it happens!
2.Avoid as much “he said, she said” as you can and still get the point across. People who do write ups often fail to identify the “he and she” to whom they are referring as the write up goes on. It’s confusing to the reader and quite frankly, boring.
3.Follow a chronological time line when detailing events.
4.Ensure you cite specific policy and procedure violations (employee handbook, job descriptions, etc.) and the impact the violation had on the company.
5.If this is not a terminating event, ensure you develop (with your employee) an action plan for improvement. Be specific, make it measurable and please, please follow up!
6.FOLLOW UP. Write ups are worthless without follow up. Not only will this employee not take you seriously your other employees won’t either.
7.Remember, it is highly unlikely that you and your employee will be the ONLY ones to read this write up. Regulatory agencies, attorneys and courts may also read it at some point. Make sure it will make sense four or six months from now.
If you or you know someone who needs assistance with any type of corrective action or other HR issues, contact The Whitford Group at TheWhitfordGroup@aol.com or 704 298-2115.
Tuesday, September 27, 2011
Lawsuit Avoidance Rule #1—Reject Troublemakers Up Front
The best and easiest way to avoid employee lawsuits is don't hire troublemakers. But that's easier said than done.
First, there's the positive side—hire people that fit, that are well-qualified, and that will be happy in their jobs. "Happy people don't sue," some experts say.
And there's the other side of the coin—avoiding the troublemakers who are either itching for an excuse to sue, or who are likely to do things that make others sue. (To harass, for example.)
Many managers take the care necessary to conduct meaningful interviews and then drop the ball on background checking. Time after time, managers who trust their intuitions find out too late that they've made a mistake. Their new hire—who was impressive during the interview—turns out to be dishonest, undependable, drug-addicted, incompetent or, worse, violent.
Identify and Reject
Fortunately, most problem employees can be identified and weeded out during the hiring process. And it's far better to keep them out of your organization than to have to deal with them after they are hired.
More often than not, says one attorney, when he goes back into the work history of an employee who has sued or who has caused a lawsuit, he finds clear evidence of prior problems:
•Employees who sue often have sued before.
•Employees who commit violence often have committed violent acts in the past.
•Employees who harass or who make trouble often have harassed or made trouble for other employers.
Evidence Is Often in Plain Sight
Often evidence indicating a troublemaker is right on the application or the resume. There may be gaps in the employment history, or a number of jobs that lasted only a few months, or "red flag" reasons for leaving prior jobs, such as "poor management," or "disagreed with policies." Perhaps there are good explanations, but these are warning signs—follow them up with thorough questioning during your selection process.
Evidence Is Readily Available
In other cases, information that would cause you to reject an applicant is readily available from outside sources—phone calls to former supervisors and routine background checks.
Listen During the Interview
Candidate answers during the interview often raise red flags. Do you get vague answers regarding duties and accomplishments? Is the candidate unable to explain gaps in employment or reasons for leaving jobs? Follow through for details. Ask what, why, who, where, when questions.
Liability for Poor Hiring Decisions
What liability might you face if you don't take due care in the hiring process?
Negligent hiring.
If you knew, or should have known, that an applicant was unfit for a job or had a propensity toward violence, but you hired the person regardless and the person harms someone, the person who is hurt may sue you for negligent hiring.
Negligent retention.
Similarly, if you become aware that a current employee is violent and you fail to discharge the person, you may be liable for negligent retention.
The best way to avoid liability for poor hiring decisions is to take extreme care in the hiring process.
Criminal Background Checks
Both federal and some state laws require criminal background checks for certain jobs.
Federal law. Federal law requires:
•Background checks for applicants for childcare jobs with federal agencies and contractors. This requirement covers jobs in education, day care, foster care, residential care, and rehabilitative care.
•Fingerprinting of securities exchange employees, including dealers and brokers.
•Background checks on truck drivers and on employees who will have access to nuclear power plants.
State law. Some states specifically require employers to run criminal background checks on job applicants.
States have traditionally required background checks on law enforcement applicants, security personnel, and teachers. But since the early 90s, state legislatures have widened the scope of jobs for which checks are required, adding jobs that involve work with vulnerable populations, such as children, the developmentally disabled, and incapacitated adults. Check the laws of your state.
To avoid hiring troublemakers:
• Do consistent, detailed reference checks
•Be sure to talk to current or former direct supervisors.
•Explore the red flags uncovered on the application and during the interview.
•Stick with questions about performance on the job.
•Engage a professional agency to conduct background checks appropriate to the position.
One of the most effective checks you can do is just to compare all the information you have. Are the resume and application consistent with each other and with information gained during background checks, reference checks, and interviews?
If you have trouble getting former employers to open up, follow these tips:•
•Have the employee sign a waiver. Fax the waiver to the person you need to talk to.
•Enlist the candidate's help. Have the candidate call the person and request that he or she speak to you.
•Play hardball. Tell the person that you won't be able to consider the applicant unless you can get a reference.
•Quote job reference immunity laws. Over half the states have laws protecting employers from liability for statements made in job references, as long as the information is true, provided in good faith, and devoid of malice.
Those statutes are designed to encourage employers to share useful information with one another, rather than giving only names, positions, and salary levels. If your state has such a law, let applicants' former employers know about it when you interview them.
Can You Avoid All Troublemakers?
Probably not. But even if a few slip through, it's worth the effort if you keep some out of your organization. At the very least, you'll establish your good-faith effort to screen candidates.
You do not want to be on the witness stand explaining how you never quite got around to doing the reference checks on one of your new employees who just committed a violent act—one that he or she had committed before at a former place of employment.
You Never Know
One attorney tells of a client who was being sued by an employee the client had just fired. Although the termination was for poor performance, the former employee claimed that he was fired because he had reported regulatory violations to the authorities (which he had).
In preparing for the case, the attorney contacted five former employers. All five had been victims of the same scenario—the person would, in each case, get hired, perform poorly, make a complaint, get fired, and then sue!
Obviously, not one of these employers had bothered with reference checks on this employee.
Troublemakers' FavoriteTarget—FMLA
If you do hire a troublemaker, one area where you're almost sure to have problems is Family and Medical Leave. Slackers love open-ended intermittent leave—their ticket to get off work whenever they want to—unless you've established iron-clad policies and procedures.
It's an almost overwhelming task to keep up with the FMLA, and the recent, far-reaching changes haven't helped. And that's to say nothing of the devilish complexity of marrying FMLA with ADA and workers' comp.
Summarized from Today's HR Daily Advisor Tip:
The Whitford Group can assist you in developing a comprehensive hiring process and train your supervisors and managers in effective techniques to help them hire the best employees first.
TheWhitfordGroup@aol.com
704 298-2115
First, there's the positive side—hire people that fit, that are well-qualified, and that will be happy in their jobs. "Happy people don't sue," some experts say.
And there's the other side of the coin—avoiding the troublemakers who are either itching for an excuse to sue, or who are likely to do things that make others sue. (To harass, for example.)
Many managers take the care necessary to conduct meaningful interviews and then drop the ball on background checking. Time after time, managers who trust their intuitions find out too late that they've made a mistake. Their new hire—who was impressive during the interview—turns out to be dishonest, undependable, drug-addicted, incompetent or, worse, violent.
Identify and Reject
Fortunately, most problem employees can be identified and weeded out during the hiring process. And it's far better to keep them out of your organization than to have to deal with them after they are hired.
More often than not, says one attorney, when he goes back into the work history of an employee who has sued or who has caused a lawsuit, he finds clear evidence of prior problems:
•Employees who sue often have sued before.
•Employees who commit violence often have committed violent acts in the past.
•Employees who harass or who make trouble often have harassed or made trouble for other employers.
Evidence Is Often in Plain Sight
Often evidence indicating a troublemaker is right on the application or the resume. There may be gaps in the employment history, or a number of jobs that lasted only a few months, or "red flag" reasons for leaving prior jobs, such as "poor management," or "disagreed with policies." Perhaps there are good explanations, but these are warning signs—follow them up with thorough questioning during your selection process.
Evidence Is Readily Available
In other cases, information that would cause you to reject an applicant is readily available from outside sources—phone calls to former supervisors and routine background checks.
Listen During the Interview
Candidate answers during the interview often raise red flags. Do you get vague answers regarding duties and accomplishments? Is the candidate unable to explain gaps in employment or reasons for leaving jobs? Follow through for details. Ask what, why, who, where, when questions.
Liability for Poor Hiring Decisions
What liability might you face if you don't take due care in the hiring process?
Negligent hiring.
If you knew, or should have known, that an applicant was unfit for a job or had a propensity toward violence, but you hired the person regardless and the person harms someone, the person who is hurt may sue you for negligent hiring.
Negligent retention.
Similarly, if you become aware that a current employee is violent and you fail to discharge the person, you may be liable for negligent retention.
The best way to avoid liability for poor hiring decisions is to take extreme care in the hiring process.
Criminal Background Checks
Both federal and some state laws require criminal background checks for certain jobs.
Federal law. Federal law requires:
•Background checks for applicants for childcare jobs with federal agencies and contractors. This requirement covers jobs in education, day care, foster care, residential care, and rehabilitative care.
•Fingerprinting of securities exchange employees, including dealers and brokers.
•Background checks on truck drivers and on employees who will have access to nuclear power plants.
State law. Some states specifically require employers to run criminal background checks on job applicants.
States have traditionally required background checks on law enforcement applicants, security personnel, and teachers. But since the early 90s, state legislatures have widened the scope of jobs for which checks are required, adding jobs that involve work with vulnerable populations, such as children, the developmentally disabled, and incapacitated adults. Check the laws of your state.
To avoid hiring troublemakers:
• Do consistent, detailed reference checks
•Be sure to talk to current or former direct supervisors.
•Explore the red flags uncovered on the application and during the interview.
•Stick with questions about performance on the job.
•Engage a professional agency to conduct background checks appropriate to the position.
One of the most effective checks you can do is just to compare all the information you have. Are the resume and application consistent with each other and with information gained during background checks, reference checks, and interviews?
If you have trouble getting former employers to open up, follow these tips:•
•Have the employee sign a waiver. Fax the waiver to the person you need to talk to.
•Enlist the candidate's help. Have the candidate call the person and request that he or she speak to you.
•Play hardball. Tell the person that you won't be able to consider the applicant unless you can get a reference.
•Quote job reference immunity laws. Over half the states have laws protecting employers from liability for statements made in job references, as long as the information is true, provided in good faith, and devoid of malice.
Those statutes are designed to encourage employers to share useful information with one another, rather than giving only names, positions, and salary levels. If your state has such a law, let applicants' former employers know about it when you interview them.
Can You Avoid All Troublemakers?
Probably not. But even if a few slip through, it's worth the effort if you keep some out of your organization. At the very least, you'll establish your good-faith effort to screen candidates.
You do not want to be on the witness stand explaining how you never quite got around to doing the reference checks on one of your new employees who just committed a violent act—one that he or she had committed before at a former place of employment.
You Never Know
One attorney tells of a client who was being sued by an employee the client had just fired. Although the termination was for poor performance, the former employee claimed that he was fired because he had reported regulatory violations to the authorities (which he had).
In preparing for the case, the attorney contacted five former employers. All five had been victims of the same scenario—the person would, in each case, get hired, perform poorly, make a complaint, get fired, and then sue!
Obviously, not one of these employers had bothered with reference checks on this employee.
Troublemakers' FavoriteTarget—FMLA
If you do hire a troublemaker, one area where you're almost sure to have problems is Family and Medical Leave. Slackers love open-ended intermittent leave—their ticket to get off work whenever they want to—unless you've established iron-clad policies and procedures.
It's an almost overwhelming task to keep up with the FMLA, and the recent, far-reaching changes haven't helped. And that's to say nothing of the devilish complexity of marrying FMLA with ADA and workers' comp.
Summarized from Today's HR Daily Advisor Tip:
The Whitford Group can assist you in developing a comprehensive hiring process and train your supervisors and managers in effective techniques to help them hire the best employees first.
TheWhitfordGroup@aol.com
704 298-2115
Wednesday, July 20, 2011
Supreme Court Says Oral Complaint Triggers FLSA's Anti-Retaliation Protections
Under the Fair Labor Standards Act, employers are prohibited from retaliating against an employee who complains about wage payment issues. Some employers adopt policies requiring that all complaints be submitted in writing, often for the purpose of specifying the employee's exact grievances.
The U.S. Supreme Court concluded that the anti-retaliation provisions of the FLSA are triggered when an employee makes either an oral or written complaint to his or her employer.
In Kasten v. Saint-Gobain Performance Plastics Corp., the plaintiff told his supervisor that he was considering a lawsuit against the company because its placement of the time clock did not allow payment of time spent donning and doffing protective clothing. He alleged that he was terminated as a result of the oral complaint.
The Seventh Circuit dismissed the retaliation claim, citing language in the FLSA that ties its anti-retaliation protections to employees who "file" complaints with their employers. The defendant contended that this language means that in order to be protected from retaliation, the employee must make a more formal complaint to the employer.
The Supreme Court rejected this reasoning, reversing the lower court's decision. The 6-2 majority concluded that as long as the complaint is sufficiently clear and detailed enough for the employer to understand, it may be protected under the FLSA. Nothing in the statute requires that the complaint be submitted in writing.
This decision continues a string of Court decisions that expansively read anti-retaliation provisions of federal employment laws. The Supreme Court has repeatedly rejected narrow readings of these laws in favor of protections for employees who exercise their legal rights.
For procedural reasons, the Court declined to consider the defendant's contentions that the FLSA's retaliation provisions only cover employees who have made a complaint to a governmental agency. For now, employers should understand that any form of complaint may trigger these protections, even if the employer requires or prefers that they be submitted in writing.
Posted by The Whitford Group, 704 298-2115
ParkerPoe, EmployNews, Issue 612, March 25, 2011
The U.S. Supreme Court concluded that the anti-retaliation provisions of the FLSA are triggered when an employee makes either an oral or written complaint to his or her employer.
In Kasten v. Saint-Gobain Performance Plastics Corp., the plaintiff told his supervisor that he was considering a lawsuit against the company because its placement of the time clock did not allow payment of time spent donning and doffing protective clothing. He alleged that he was terminated as a result of the oral complaint.
The Seventh Circuit dismissed the retaliation claim, citing language in the FLSA that ties its anti-retaliation protections to employees who "file" complaints with their employers. The defendant contended that this language means that in order to be protected from retaliation, the employee must make a more formal complaint to the employer.
The Supreme Court rejected this reasoning, reversing the lower court's decision. The 6-2 majority concluded that as long as the complaint is sufficiently clear and detailed enough for the employer to understand, it may be protected under the FLSA. Nothing in the statute requires that the complaint be submitted in writing.
This decision continues a string of Court decisions that expansively read anti-retaliation provisions of federal employment laws. The Supreme Court has repeatedly rejected narrow readings of these laws in favor of protections for employees who exercise their legal rights.
For procedural reasons, the Court declined to consider the defendant's contentions that the FLSA's retaliation provisions only cover employees who have made a complaint to a governmental agency. For now, employers should understand that any form of complaint may trigger these protections, even if the employer requires or prefers that they be submitted in writing.
Posted by The Whitford Group, 704 298-2115
ParkerPoe, EmployNews, Issue 612, March 25, 2011
North Carolina and South Carolina Immigration Alert: E-Verify Mandatory for Certain Employers
Joining the recent wave of states introducing stricter immigration legislation in the wake of the United States Supreme Court's Whiting decision in May, both North Carolina and South Carolina will require employers to register and participate in the federal government's electronic verification system, known as "E-Verify". E-Verify is otherwise a voluntary federal system that supplements the paper I-9 employment verification system.
North Carolina: New E-Verify Act
Governor Perdue signed a bill requiring certain employers to verify the employment eligibility of all new hires through E-Verify. The North Carolina law requires all counties and municipalities to start using E-Verify effective October 1, 2011. (NC state agencies are already required to use E-Verify). All other employers with over 24 employees in North Carolina must start using E-Verify according to the following schedule: October 1, 2012 for employers with 500 or more employees; January 1, 2013 for employers with 100 to 499 employees; and July 1, 2013 for employers with 25 to 99employees. The law exempts seasonal temporary employees who are employed for 90 or fewer days during a 12-month period.
The new law allows any person with a good faith belief that an employer has violated the law to report complaints to the Commissioner of Labor. The Commissioner must then investigate the complaint to determine whether an employer has violated the law and shall hold a hearing to determine if a violation has occurred. If in the course of the investigation the Commissioner concludes that there is a reasonable likelihood that an employee is an unauthorized alien, the Commissioner must notify U.S. Immigration and Customs Enforcement and local law enforcement agencies.
Civil penalties may be assessed upon the issuance of an order as follows: (a) for a first violation, an employer must file an affidavit within three business days after the order that the employer has, after consultation with the employee, requested a verification of work authorization through E-Verify; (b) for a second violation, the employer must file the affidavit and pay a civil penalty of $1,000, regardless of the number of missing employee verifications; and (c) for a third or subsequent violation, the employer must file the affidavit and pay a civil penalty of $2,000 for each required employee verification missing. In any event, failure to file the required affidavit for any violation also results in a civil penalty of $10,000.
South Carolina: SC Illegal Immigration Reform Act Update
On Monday, Governor Haley signed a bill into law amending several sections of the South Carolina Illegal Immigration Reform Act of 2008 (SCIIRA). The most important amendments mandate that all South Carolina employers that are required to complete and maintain federal employment eligibility verification forms or documents, use E-Verify. South Carolina employers have until January 1, 2012 to comply with the South Carolina law.
The current version of SCIIRA imputed a state employment license to South Carolina employers as of July 1, 2009, and has required compliance by all South Carolina employers since July 1, 2010. SCIIRA allows employers to choose between enrolling and verifying their work force through the federal E-Verify system or employ only workers who (a) have a South Carolina driver's license or ID card, (b) have a driver's license or ID card issued by another state whose license requirements are as strict as those in South Carolina, or (c) are eligible to obtain a South Carolina driver's license or ID card. Penalties for failure to comply with verification procedures include civil penalties of not less than $100 and not more than $1000 for each violation, and include the suspension or revocation of an employer's employment license for "knowingly or intentionally employing an unauthorized alien".
SCIIRA has been enforced by investigators with SCLLR who have been notifying and conducting audits of South Carolina employers since the Summer of 2009. Investigations ceased earlier this year in light of questions as to the enforceability of South Carolina's statute. With the passage of the new law, it is likely that investigations will continue under the parameters of the new law.
In addition to deleting the alternative means for compliance and mandating the use of E-Verify, the law removes civil monetary fines and implements a system of probation, suspension and revocation with respect to the imputed employment license. Private employers that are general contractors are also required to maintain contact phone numbers for all subcontractors working on the project. After a violation is determined, SCLLR will verify the work authorization status of the employees, notify the employer of the results and notify federal, state and local law enforcement officials of any suspected unauthorized aliens employed by the employer. Each failure to verify the immigration status of a new employee is considered a separate violation of the law.
Posted by The Whitford Group, 704 298-2115
ParkerPoe, EmployNews, Issue 626, July 1, 2011
North Carolina: New E-Verify Act
Governor Perdue signed a bill requiring certain employers to verify the employment eligibility of all new hires through E-Verify. The North Carolina law requires all counties and municipalities to start using E-Verify effective October 1, 2011. (NC state agencies are already required to use E-Verify). All other employers with over 24 employees in North Carolina must start using E-Verify according to the following schedule: October 1, 2012 for employers with 500 or more employees; January 1, 2013 for employers with 100 to 499 employees; and July 1, 2013 for employers with 25 to 99employees. The law exempts seasonal temporary employees who are employed for 90 or fewer days during a 12-month period.
The new law allows any person with a good faith belief that an employer has violated the law to report complaints to the Commissioner of Labor. The Commissioner must then investigate the complaint to determine whether an employer has violated the law and shall hold a hearing to determine if a violation has occurred. If in the course of the investigation the Commissioner concludes that there is a reasonable likelihood that an employee is an unauthorized alien, the Commissioner must notify U.S. Immigration and Customs Enforcement and local law enforcement agencies.
Civil penalties may be assessed upon the issuance of an order as follows: (a) for a first violation, an employer must file an affidavit within three business days after the order that the employer has, after consultation with the employee, requested a verification of work authorization through E-Verify; (b) for a second violation, the employer must file the affidavit and pay a civil penalty of $1,000, regardless of the number of missing employee verifications; and (c) for a third or subsequent violation, the employer must file the affidavit and pay a civil penalty of $2,000 for each required employee verification missing. In any event, failure to file the required affidavit for any violation also results in a civil penalty of $10,000.
South Carolina: SC Illegal Immigration Reform Act Update
On Monday, Governor Haley signed a bill into law amending several sections of the South Carolina Illegal Immigration Reform Act of 2008 (SCIIRA). The most important amendments mandate that all South Carolina employers that are required to complete and maintain federal employment eligibility verification forms or documents, use E-Verify. South Carolina employers have until January 1, 2012 to comply with the South Carolina law.
The current version of SCIIRA imputed a state employment license to South Carolina employers as of July 1, 2009, and has required compliance by all South Carolina employers since July 1, 2010. SCIIRA allows employers to choose between enrolling and verifying their work force through the federal E-Verify system or employ only workers who (a) have a South Carolina driver's license or ID card, (b) have a driver's license or ID card issued by another state whose license requirements are as strict as those in South Carolina, or (c) are eligible to obtain a South Carolina driver's license or ID card. Penalties for failure to comply with verification procedures include civil penalties of not less than $100 and not more than $1000 for each violation, and include the suspension or revocation of an employer's employment license for "knowingly or intentionally employing an unauthorized alien".
SCIIRA has been enforced by investigators with SCLLR who have been notifying and conducting audits of South Carolina employers since the Summer of 2009. Investigations ceased earlier this year in light of questions as to the enforceability of South Carolina's statute. With the passage of the new law, it is likely that investigations will continue under the parameters of the new law.
In addition to deleting the alternative means for compliance and mandating the use of E-Verify, the law removes civil monetary fines and implements a system of probation, suspension and revocation with respect to the imputed employment license. Private employers that are general contractors are also required to maintain contact phone numbers for all subcontractors working on the project. After a violation is determined, SCLLR will verify the work authorization status of the employees, notify the employer of the results and notify federal, state and local law enforcement officials of any suspected unauthorized aliens employed by the employer. Each failure to verify the immigration status of a new employee is considered a separate violation of the law.
Posted by The Whitford Group, 704 298-2115
ParkerPoe, EmployNews, Issue 626, July 1, 2011
New Wage and Hour “App” from the Department of Labor (DOL)
The Department of Labor (DOL) - which, by the way, estimates that 70 percent of employers are not in compliance with the Fair Labor Standards Act (FLSA) - has unveiled a free smartphone application that allows workers to track their hours so they can figure out exactly how much compensation they're owed for time worked.
Yes, there's an app for that!
Plus, the app includes a prominent "contact us" icon, making the DOL just a quick finger-tap away for any employee who believes he or she is being underpaid. Secretary of Labor Hilda Solis notes that the technology could prove "invaluable" during wage/hour investigations that allege inaccurate employer time records.
Do you need a wage and hour audit? Don't spend money paying penalties and fines. Use your money wisely, protect your company.
The Whitford Group
704 298-2115
BLR, July 2011
Yes, there's an app for that!
Plus, the app includes a prominent "contact us" icon, making the DOL just a quick finger-tap away for any employee who believes he or she is being underpaid. Secretary of Labor Hilda Solis notes that the technology could prove "invaluable" during wage/hour investigations that allege inaccurate employer time records.
Do you need a wage and hour audit? Don't spend money paying penalties and fines. Use your money wisely, protect your company.
The Whitford Group
704 298-2115
BLR, July 2011
Thursday, February 24, 2011
Fourth Circuit Again Finds Sexual Harassment Created by General Workplace Behavior
Until several years ago, in order to prevail on a claim of sexual harassment under Title VII, plaintiffs in the Fourth Circuit Court of Appeals' jurisdiction (including North and South Carolina) had to demonstrate that the alleged hostile environment consisted of acts directed at them because of their gender.
Recently, the Fourth Circuit changed this view, allowing sexual harassment claims to proceed to trial where the plaintiff was exposed to a culture of sexual and denigrating behavior towards women in the workplace, even if that conduct was not directed at her personally. Last month, the court further extended this principal, finding a hostile work environment based largely on sexist and demeaning attitudes and opinions toward women expressed by co-workers.
In Mosby-Grant v. City of Hagerstown, the plaintiff was a police academy cadet, who contended that her failure to graduate was caused by the behavior of her fellow recruits. She alleged a wide range of complaints, most of which involved explicit and derogatory references to women in general. Cadets and instructors used the word "bitch" to refer to women, and male recruits complained about domestic violence training. The plaintiff alleged that she was subjected to scorn and ridicule by her co-workers based on her gender.
In a 2-1 decision, the Fourth Circuit concluded that the plaintiff's allegations were sufficient to state a claim of hostile environment harassment under Title VII. The court concluded that the cumulative effect of comments demeaning to women is equivalent to an environment where women are subject to unwanted sexual advances.
ParkerPoe, EmployNews,Issue 602, January 14, 2011
Recently, the Fourth Circuit changed this view, allowing sexual harassment claims to proceed to trial where the plaintiff was exposed to a culture of sexual and denigrating behavior towards women in the workplace, even if that conduct was not directed at her personally. Last month, the court further extended this principal, finding a hostile work environment based largely on sexist and demeaning attitudes and opinions toward women expressed by co-workers.
In Mosby-Grant v. City of Hagerstown, the plaintiff was a police academy cadet, who contended that her failure to graduate was caused by the behavior of her fellow recruits. She alleged a wide range of complaints, most of which involved explicit and derogatory references to women in general. Cadets and instructors used the word "bitch" to refer to women, and male recruits complained about domestic violence training. The plaintiff alleged that she was subjected to scorn and ridicule by her co-workers based on her gender.
In a 2-1 decision, the Fourth Circuit concluded that the plaintiff's allegations were sufficient to state a claim of hostile environment harassment under Title VII. The court concluded that the cumulative effect of comments demeaning to women is equivalent to an environment where women are subject to unwanted sexual advances.
ParkerPoe, EmployNews,Issue 602, January 14, 2011
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