Hot Topics in Employer Compliance

Presented by

Al Vreeland, Donna Brooks, Mike Green and Matthew Cannova

November 13, 2012

Copyright 2012 Lehr Middlebrooks & Vreeland, P.C. All rights reserved. Reproduction or use of these materials, including for in-house training, without authorization of the authors is prohibited.

SOCIAL MEDIA IN THE WORKPLACE

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NLRB

• Facebook = “Concerted Activity”

• No blanket rule against posting negative comments about employer

• No rule which would chill employee’s posting about terms and conditions

• Savings clause may work

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FTC Guidelines on Endorsements

• “Truth in Advertising” applies

• Must disclose if compensated

• Must disclose employer if its products or services involved

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Privacy in Social Media

“Rapid changes in the dynamics of communication and information transmission

are evident not just in the technology itself but in what society accepts as proper

behavior… [M]any employers expect or at least tolerate personal use of such

equipment by employees because it often increases worker efficiency…

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Privacy (cont.)

…At present, it is uncertain how workplace norms, and the law’s treatment of them,

will evolve.”

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GINA

• Prohibits employers from “acquiring” Genetic Information

• Including genetically predisposed diseases (e.g. heart disease, diabetes)

• Regulations apply the “water cooler exceptions” to social media

• But must be given permission (e.g. “friended”)

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Employer Policy Considerations

• Set privacy expectations

• Ensure the policy applies to all technology (not just e-mail)

• Evaluate the degree off-work activity may impact work

• Consider supervisor participation networking sites (e.g. friending employees)

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AFFIRMATIVE ACTION

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Looking Ahead

• Nature of audits – Prolonged warfare – Expensive – More, and more technical violations

• Proposed regulations regarding vets and disabled

• Relationship between OFCCP and Congress • Healthcare coverage • NRC NAS Report on Compensation

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RESTRICTIVE COVENANTS

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Do You Need Them?

• Pros: – Protecting proprietary information

– Guarding key relationships

– Discouraging defections

• Cons: – Employee morale – Obstacles to recruiting

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Types

• Confidentiality and Nondisclosure

• Non-Competition

• Non-Solicitation

• No-Raiding

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Are They Enforceable?

• Does the employee have something worth protecting?

• Does the agreement go too far?

• Did either party behave badly?

• Can the employee pay his bills?

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Is It Worth Enforcing?

• Costs – to everyone involved

• Sending a message to other employees

• Sending a message to competitors

• Danger of bad result

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Details, Details

• One-size does not fit all

• Time and geography

• Jurisdiction and forum selection

• Garden-time

• Fee shifting

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USERRA

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Overview

• Uniformed Services Employment and Reemployments Rights Act of 1994 (USERRA) – Protects employees in the uniformed services from

discrimination and retaliation in employment based on their participation in the uniformed services (covers all employers, public and private, no matter their size)

• Are employees covered for voluntary service? Yes – “Service in the uniformed services” covers “all categories

of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war.”

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Overview (cont.)

• Is there any way to deny reinstatement? Yes – Must notify the employer in advance (verbal or written),

must be reasonable under the circumstances (generally, at least 30 days)

– Eligible if advanced notice, 5 years or less of uniformed service in employment with employer, timely reapplies, no BCD/OTH discharge

– Affirmative Defenses - An employer’s burden to show: employer’s changed circumstances, an undue hardship on the employer, or employment position was for a brief, non-recurrent period and no reasonable expectation that employment would continue for a significant period

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Overview (cont.)

• What is a “timely” reapplication for employment? – Less than 31 days: first full regularly-scheduled work

period on the first full calendar day following eight hours after returning home

– More than 30 days, but less than 181 days: must submit application for reemployment (written or verbal) within 14 days of completing service

– More than 180 days: must submit application for reemployment (written or verbal) within 90 days of completing service

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Overview (cont.)

• Can I require the service member to use PTO? No

• “Employer” includes “successors in interest” – whether or not successor is aware of employee protected by USERRA

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Resources

• www.dol.gov – USERRA compliance assistance materials, including: – Employment Law Guide – Uniformed Service

Members – Fact Sheets – E-Tools (USERRA Advisor)

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BEST PRACTICES FOR DOCUMENT RETENTION

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• Duration of the employment relationship, plus an additional 6 years. Good Rule of Thumb

• Safety and toxic chemical exposure records, which must be kept for 30 years after the termination of the employment relationship

This satisfies the requirements of every record-retention law

except:

• Hiring • Employment Relationship • Termination.

Three General Categories of

Recordkeeping:

Recordkeeping Basics

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Three Categories of Records

HIRING TERMINATION

• Job Postings • Job Applications • Interviews • Offer Letter • Conducting Reference

and Background Checks

• I-9 Verification of Authorization to Work

• Drug/Alcohol Testing and Physical Exams

• Employee Handbook Acknowledgment

• Employee Personnel File • Payroll and Other

Compensation Records • Benefit Records • Vacation, Sick Time and

Other Time-Off Records • Personnel Management

Records: Promotion, Transfers and Disciplinary Reports

• Reductions in Force

• WARN Notice records

• Separation and Release Agreements

• COBRA Records

HIRING EMPLOYMENT RELATIONSHIP TERMINATION

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Tips for Better Recordkeeping 1. Written policy

• Should include: – What documents are to be created and by whom; – What records are to be retained, for how long and by whom;

– Where those records are to be stored.

• Devote the time and resources to implement the policy. • Train managers about the recordkeeping policy.

– Managers’ notes

2. Electronic vs. paper records 3. Method to retrieve

• Create a map or index to retrieve the records when necessary. 4. Records required to be kept separately

• Various laws require that medical records be kept separate from an employee’s personnel file.

5. Potential consequences of inadequate recordkeeping

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• Age Discrimination in Employment Act (ADEA)

• ADEA Amendment—Older Workers Benefit Protection Act (OWBPA)

• Americans with Disabilities Act (ADA)

• Civil Rights Act of 1964, as Amended in 1991 (Title VII)

• Consolidated Omnibus Budget Reconciliation Act (COBRA)

• Davis-Bacon Act

• Employee Polygraph Protection Act

• Employee Retirement Income Security Act (ERISA)

• Equal Pay Act (EPA)

• Equal Employment Opportunity Form (EEO-1)

• Executive Order 11246/Office of Federal Contract Compliance Programs (OFCCP)

• Fair Labor Standards Act (FLSA)

• FLSA/Equal Pay Act

• FLSA/Tipped Employees

Important Statues with Record Retention Requirements

• Family and Medical Leave Act (FMLA) • Federal Unemployment Tax Act (FUTA)

• Freedom of Information Act (FOIA)/Privacy Act

• Health Information Privacy (Health Insurance Portability and Accountability Act - HIPAA)

• Homeworker Regulations (FLSA)

• Immigration Reform and Control Act (IRCA)

• Internal Revenue Service (IRS) Regulations

• Occupational Safety and Health Administration (OSHA)

• Personal Responsibility and Worker Opportunity Reconciliation Act of 1996

• Rehabilitation Act of 1973

• Social Security Act (Federal Insurance Contributions Act - FICA)

• FICA: Tipped Employees

• Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA)

• Walsh-Healy Public Contracts Act 27

FORM 5500s & PLAN QUALIFICATION

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Form 5500 Basics • The Form 5500 reports information about the plan, its finances, its operation, and

participant counts. • This information is used by the U.S. Department of Labor, the Internal Revenue

Service (IRS), other government agencies, organizations, and the public. • Participants and beneficiaries can receive a copy of the Form 5500 upon request

from the plan.

Type of Information

• Form 5500 records must be maintained for not less than six years.

Record Retention

• U.S. Department of Labor (DOL) To Whom

• Within seven months after the end of the Plan Year • A 2-1/2 month extension is available by filing a Form

5558. When

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How to File

• Generally must be filed electronically. • Form 5500-SF

– Most small business retirement plans with fewer than 100 participants may complete and file Form 5500-SF electronically.

– (Only one-participant plan administrators may choose to complete the paper Form 5500-EZ.)

• Form 5500 – Must be completed by plans with 100 or more

participants. – It may only be completed and filed electronically.

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Plan Qualification

• Importance: Tax deductions

• Basic requirements for qualified plans

• Nondiscrimination and HCEs

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SUBPOENAS AND GARNISHMENTS

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Writs of Garnishment – Employer Obligations

• What is a Writ of Garnishment? • Answer the Writ

– File your Answer with the court – Under oath – Within 30 days of service of Writ (in AL)

• Contents of Answer • Begin withholding • Failure to Answer • Writs of Garnishment from another state

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“Disposable Earnings” • The amount which

remains after deductions “required by law” have been made. • “Required by Law” –

• FICA, Social Security, other taxes (state, local, etc.), and Child Support.

State and Federal Exemptions • Exemptions allow for

garnishment of the LESSER amount of … • 25% of disposable earnings

OR • Amount by which disposable

earnings for the week exceed 30 times federal minimum wage

Pay Money into the Court

• Within 30 days after first withholding

• Every 30 days thereafter until satisfied

Processing the Garnishment

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Discharge the Employee • General Rule: Employers may not discipline or retaliate

against employees whose wages have been garnished. • Federal Consumer Credit Protection Act (15 U.S.C. § 1674)

• Forbids the discharge of an employee for a garnishment that arises from a single indebtedness.

• $1000 fine, a year's imprisonment or both for violation of the law.

• Potential Title VII Disparate Impact Lawsuit Fail to Answer • Risk being held liable for amount of judgment. • Likely outcome: Judgment for amounts that should have

been garnished to date.

What Employers CANNOT Do

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• Workers’ Compensation benefits constitute “income” and are subject to garnishment.

• Garnishments should be satisfied in the order

received. Notify creditor’s attorney and the court of

multiple garnishments.

Tips for Employers

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Rule 45 Subpoena • May command appearance at a deposition, production of

documents, or both. • Do not have to be a party. • Must allow reasonable time for compliance. • 14 days to object (Federal)

Concerns When Producing Documents • HIPAA, Privilege, Trade Secrets, Undue Burden, etc.

What Employers Should Know About Subpoenas

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