COMPLIANCE

Human Resources has evolved greatly from the days of being responsible for payroll and training.  With 100's of federal laws from hiring to termination, and constant change to those federal laws, as well as the state and municipal laws, HR has gone from process managers to full-on compliance managers.  Keeping up with so many laws, in the hiring process, the on-boarding of an employee, the performance and discipline processes, welfare benefits and termination, the days of being an HR generalist has a whole new meaning - perhaps its an HR Compliance Generalist?

This section provides critical overviews of Federal laws, state laws and ERISA (a whole set of rules affecting all of a company's benefit plans).  This section may be the most important and inclusive, and may drive you to ask 100 more questions.  We are here to help!  Click on Ask a Lawyer (above) for help!

 

federal employment laws

Federal Employment Laws: While there are hundreds of federal employment laws that affect the employer/employee relationship, some of the most critical are listed below:

  • ERISA

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans.

ERISA requires plans to provide participants with plan information including important information about plan features and funding; sets minimum standards for participation, vesting, benefit accrual and funding; provides fiduciary responsibilities for those who manage and control plan assets; requires plans to establish a grievance and appeals process for participants to get benefits from their plans; gives participants the right to sue for benefits and breaches of fiduciary duty; and, if a defined benefit plan is terminated, guarantees payment of certain benefits through a federally chartered corporation, known as the Pension Benefit Guaranty Corporation (PBGC).

  • Title VII

One of the major overarching laws that employers must comply with is Title VII.  Title VII prohibits an employer from failing or refusing to hire or discharging any individual, discriminating against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, or otherwise adversely affecting an employee because of such individual’s race, color, religion, sex, or national origin.  This law applies to employers who have 15 or more employees.  However, even if your company has fewer employees, remember that most states have their own version of Title VII that often applies to employers who have even 1 employee.

  • ACA

While this landmark health reform legislation was designed to expand the availability of health insurance, the Affordable Care Act has also had the effect of causing major compliance headaches for employers since the law's inception.  It is a complicated law and the penalties for failure to comply are serious.  Applicable large employers, typically employers with 50 or more employees, must offer their full-time employees affordable, essential coverage.  Additionally, employers will have to collect information for reporting to the IRS.  This means that employers must complete reports for each employee every tax year. 

It is likely not news to anyone that the ACA has been a hotbed for political arguments.  To keep up with the ever-changing landscape surrounding the ACA and to ask questions about how you can remain in compliance, contact us any time through the Ask an Attorney link.  

  • ADEA

When planning a layoff or reduction in force, evaluating and promoting employees, determining wages and benefits, or terminating and replacing an employee who is not performing, the employee’s age must be considered.  The Age Discrimination in Employment Act (ADEA) and its amendment, the Older Workers Benefit Protection Act (OWBPA) prohibit employers from discriminating against anyone 40 years of age or older.  Common pitfalls that can result in lawsuits include imposing a mandatory retirement policy or reducing benefits to older workers.

Layoffs and terminations can have a disparate impact on older workers, which could create liability for your company.  Documentation can make a critical impact when separating an employee over 40.  Drafting a severance agreement requires expert legal knowledge to protect your interests.  Knowing what and what not to put in a job description helps you prevent excluding older workers. Use our legal know-how to navigate the ADEA

  • PDA

The Pregnancy Discrimination Act (PDA) protects employees from discrimination on the basis of pregnancy, childbirth, and related conditions.  Pregnancy is treated as a temporary disability under PDA, and employers are required to reasonably accommodate women who are pregnant or recovering from childbirth or the loss of pregnancy.  Having a policy in place and training management is key to prevent employment actions prohibited by the PDA.

  • GINA

Employers who provide wellness programs or have access to any applicant or employee medical information need to know about the Genetic Information Nondiscrimination Act (GINA).  GINA prohibits employers from using information about an applicant or employee’s genetic information (including a medical condition or predisposition to develop a medical condition or disease) to make employment decisions, including hiring, work assignments, promotions, and termination.  GINA also provides that employer-sponsored wellness programs must be completely voluntary, and employers may not pressure employees into participating or refuse to hire, discipline, suspend, or terminate an employee who chooses not to participate. 

Let us review your wellness program policies and procedures for handling medical information to ensure compliance with the law and protection from liability under GINA.

  • OSHA

We’ve all seen the signs: “100 Days Without an Accident.”  But posting these signs actually puts the employer out of compliance with federal agency guidelines and exposes that employer to audits, fines, and corrective orders!

OSHA is the Occupational Safety and Health Administration, the arm of the federal government that regulates everything relating to workplace safety and health, such as hazardous chemicals, personal protective equipment, and illness and injury reporting.

OSHA makes regulations with which employers must comply.  OSHA periodically publishes guidance on how to interpret those regulations and implement best practices for compliance.  Keeping up with regulations and guidance is necessary to protect your business, and your legal experts have the skills and resources to stay up-to-date.

Employers often use language in their employee handbooks and safety policies that they believe best protect themselves and their employees in the event of a workplace illness or injury.  But common language and provisions may run contrary to OSHA guidelines and subject an employer to further liability in the event of an OSHA audit.  You need a handbook and safety policy that will reflect current regulations and guidance.

 

 

erisa

ERISA requires plans to provide participants with plan information including important information about plan features and funding; sets minimum standards for participation, vesting, benefit accrual and funding; provides fiduciary responsibilities for those who manage and control plan assets; requires plans to establish a grievance and appeals process for participants to get benefits from their plans; gives participants the right to sue for benefits and breaches of fiduciary duty; and, if a defined benefit plan is terminated, guarantees payment of certain benefits through a federally chartered corporation, known as the Pension Benefit Guaranty Corporation (PBGC).

myHRcounsel's  ERISA Dynamic Compliance Calendar provide the most comprehensive and organized set of forms, notices and with our premium services, provides companies with legally prepared Summary Plan Descriptions, Summary of Material Modifications and Wrap/SPD documents, all requirements of ERISA.
 

 

employee handbook 

Employee Handbooks: The foundation for compliance in the human resources processes and procedures in a company begins with the employee handbook.  Our premium services include a legally prepared, state-specific employee handbook.  Simply click on "Employee Handbook" below and we will walk you through this critical process:

 

FAQS

Q. What are some examples of employment decisions that may violate Title VII?

·       Refusal to hire

·       Discipline

·       Termination

·       Denial of training or other educational opportunities

·       Failure to promote

·       Demotion

·       Pay cut

·       Harassment

Q. My company has a policy that prohibits all employees from wearing any sort of head covering.  An employee who wears a hijab requested an exception to this policy.  Am I required to provide one?

A. The answer here is it depends.  Title VII protects all aspects of religious observance and practice including attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities.  However, companies are not required to accommodate religious beliefs or practices if doing so would post an undue hardship on the company or if there were safety concerns regarding the employee’s belief or practice.  So if an employee requests an accommodation to be able to wear a hijab in your workplace and there is no undue hardship or safety concern caused by making the accommodation, then your company should allow the employee to wear the hijab to work.

Q. Can an office rule be established requiring employees to speak only English at all times?

A. No.  Prohibiting employees from speaking in a language other than English could be considered discrimination based on national origin.  However, an office policy may be established that requires employees to speak only English at certain times when not doing so would adversely impact work duties, tasks, and communication.

ACA

Q. What forms must an applicable large employer file with the IRS to report required employee information?

A. The section 6056 regulations provide that, under the general method of reporting, an ALE Member must file a separate Form 1095-C for each of its full-time employees, and must file a transmittal (Form 1094-C) for all of the returns filed for a given calendar year. An ALE Member may file one or more Forms 1094-C, but regardless of the number of Forms 1094-C the ALE Member files, the ALE Member must file one (and only one) Form 1094-C that is an Authoritative Transmittal, reporting summary information about the ALE Member and its employees. These forms must be filed whether or not the ALE Member offers coverage, or the employee enrolls in any coverage offered.

To meet the section 6055 requirement, an ALE Member that offers health coverage through a self-insured health plan must report information about enrollment in the coverage on Form 1095-C, Part III, for any employee who is enrolled in coverage (and any enrolled family members).

Q. My company considers full-time employees to be those that work 40 hours per week.  Can I use the 40-hour work week requirement for offering health insurance benefits?

A. No.  For purposes of the employer shared responsibility provisions of the ACA, a full-time employee is, for a calendar month, an employee employed on average at least 30 hours of service per week, or 130 hours of service per month.  An hour of service is each hour for which an employee is paid, or entitled to payment, for the performance of duties to the employer, and each hour for which an employee is paid, or entitled to payment by the employer for a period of time during which no duties are performed due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty, or leave of absence.

ADEA

Q. We want to hire millennial employees who are tech-savvy and fit with our corporate culture.  Can we put out a job posting specifying that we are not looking for anyone with more than two years post-college experience?

A. It would be unwise.  The Age Discrimination in Employment Act (ADEA) protects workers age 40 and over from adverse employment action (refusal to hire, termination) based on age.  Loading a job posting with phrases that suggest a strong preference for an employee under age 40 can expose you to liability under the ADEA.

 

Q. We’re offering an early retirement program that affects employees over 40.  Can employees take early retirement and then sue us for age discrimination?

A. You may obtain a release of claims from an employee, in which the employee waives his or her rights under the ADEA.  This release of claims must be in exchange for consideration, such as severance pay or a similar benefit.  Benefits such as severance pay are governed by the Older Workers Benefit Protection Act (OWBPA).  A release of claims governed by the OWBPA must be knowing and voluntary.  To be knowing and voluntary the release must meet certain criteria, such as giving the employee a certain number of days to review, and later rescind, the agreement and advising the employee to consult with an attorney.

 

Q. Older employees are more likely to have chronic health conditions than younger employees.  Can we make older employees pay more for health insurance?

A. The OWBPA provides that, under the ADEA, employees must receive the same benefits regardless of age.  With a few exceptions, older employees and younger employees should pay the same health insurance premiums and other benefit costs.

 

PDA

Q. A candidate we interviewed is pregnant.  She told us she can work up until her due date three months from now, but we are in our busy season and do not want to hire someone who may need leave in the next month.  Can we refuse to hire her?

A. No.  A refusal to hire her would be based on her pregnancy, which constitutes pregnancy discrimination and violates the Pregnancy Discrimination Act.

 

Q. We provide light duty assignments for employees who are injured and have work restrictions.  One of our employees is pregnant and has a lifting restriction.  Do we have to accommodate this restriction, or can we require her to take leave?

A. If you accommodate nonpregnant employees who have lifting restrictions, you must accommodate an employee whose lifting restriction is due to pregnancy.

 

Q. Our employees are required to climb ladders and operate forklifts.  A pregnant employee appears to be able to perform all of her job duties and has not told us of any doctor’s restrictions, but we are concerned about possible injury to her fetus if she were to fall or be involved in an accident.  Can we require her to take leave until after her baby is born?

A. No.  If she is able and willing to perform the duties of her job, you may not require her to take leave because of your concerns about a danger risk specific to her pregnancy.

 

GINA

Q. We have a wellness program that we would like to make available to our employees’ children.  Can we offer an incentive or reward to employees for having their children sign up for the wellness program?

A. No.  You may make your wellness program open to your employees’ children, but because the risk of obtaining genetic information about an employee by asking health related questions of his or her children is high, employees may not be incentivized into having their children participate in a wellness program.

Q. We are planning to promote an employee into a demanding, high stress position in a fast-paced environment.  Our most qualified employee just told us that his mother was recently hospitalized for high blood pressure and a heart condition.  We have heard that these types of things are hereditary and are concerned about placing the employee in a position that may cause a potential health risk.  Can we refuse to promote the employee?

A. No.  If the employee has not informed you of any current medical restrictions on his ability to work you would be making your decision not to promote based on genetic information, which is prohibited by GINA. 

 

OSHA

Q. We are proud of our employees’ commitment to safety.  We would like to post a sign tracking the number of days since our last workplace accident or have a company party when we reach 100 days.  Can we do this?

A. No.  According to OSHA, these types of signs or incentives have a chilling effect on the reporting of workplace illnesses or injuries.  An injured employee may feel that he is letting his coworkers down if he is the one who reports an injury and sets back the sign or the date of the party.  That employee may decide not to report his injury to avoid spoiling things for his coworkers.  Pressuring an employee not to report a workplace injury, even inadvertently, violates OSHA.

Q. Can we have a policy requiring employees to report all injuries or illnesses within 24 hours?

A. No.  Employees must be told that they are to report all injuries or illnesses as soon as practicable.  If an employee is required to report an injury or illness immediately or within a certain period of time, and is unable to do so by extenuating circumstances, the employee may decline to report the illness or injury at all, to avoid discipline for violating the policy.  Requiring an employee to report a workplace illness or injury immediately inadvertently pressures the employee not to report, which violates OSHA.

Q. Can we require all employees who are involved in a workplace accident or injury to undergo post-incident drug testing?

A. Unless otherwise provided by state or federal law, you cannot adopt a blanket post-incident drug testing policy.  Post-incident drug testing is permitted only when there is reasonable suspicion that drug or alcohol use contributed to the incident.

 

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