Court Delays Red Flags Rule for Accountants

First attorneys got themselves exempted. Physicians then jumped in on sought a similar court order, and now accountants have succeeded in getting a judge to free them from the upcoming implementation of the Red Flags Rule, which requires companies to set up procedures to prevent identity theft.

The Red Flags Rule is part of the Fair and Accurate Credit Transactions Act (FACTA), which Congress passed in 2003. The rule requires financial institutions and creditors, including CPAs who bill clients, to develop and implement a written identity theft prevention program to protect customers’ personal information.

The rule was originally intended to take effect on Nov. 1, 2008, but has been delayed three times by the FTC (Federal Trade Commission) and is now scheduled to take effect on June 1, 2010.

The American Institute of CPAs (AICPA) filed suit in November to piggyback on the success of the attorneys’ American Bar Association (ABA) case.

Voila. The U.S. District Court for the District of Columbia in March granted their wish, but its decision is pending the D.C. Circuit Court’s review of an appeal on the ABA case. 

In short, if that court allows the attorney exemption, the accountants will get theirs as well.

For the rest of American business without deep-pocket associations to fend for them, the Red Flags Rule looms large.

You can simplify your preparation and implement of your own proactive Red Flags Rule, get a copy of Personnel Concepts Workplace Identity Theft Prevention Kit.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Bill Introduced to Eliminate/Criminalize Worker Misclassification

Even as the Department of Labor (DOL) and Internal Revenue Service (IRS) begin scouring workplace records for the improper classification of employees as independent contractors, Congress is weighing in with patches to the Fair Labor Standards Act (FLSA) to put some bite behind the bark.

Senator Sherrod Brown, D.-Ohio, has introduced the Employee Misclassification Protection Act (EMPA), which amends the FLSA to require employees to notify newly hired independent contractors in writing of their status.

The law would require employers to retain a record of each notification and specifies that the absence of this record immediately makes the contractor a regular employee of the company. The bill also comes packed with a set of fines and other consequences.

The legislation follows last year’s introduction by Senator John Kerry, D.-Massachusetts, of the Taxpayer Responsibility, Accountability and Consistency Act (TRAC?), which would remove the safe harbor provision of the Revenue Act of 1978 regarding employee misclassification.

DOL Secretary Hilda Solis immediately hailed the EMPA for addressing "this significant and troubling issue" of worker misclassification.

Thus far the DOL under Secretary Solis has targeted interns, independent contractors and non-exempt employees who are misclassified and not paid overtime as the focus of their wage and hour enforcement.

Employers, don’t fly by the seat of your pants in this important area of worker classification. If you get it wrong, you could be subject to back overtime wages and other penalties. Get yourself a copy of Personnel Concepts’ FLSA Overtime Rules Compliance Kit and ensure your employees are classified and paid correctly.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Wal-Mart Hit With Huge Class-Action Gender Bias Suit

No stranger to labor disputes or the courtroom, Wal-Mart has now been hit with a class-action gender bias lawsuit affecting as many as 1.5 million female employees.

In a close ruling, the Ninth Circuit Court of Appeals in San Francisco voted 6 to 5 to certify class-action status. Wal-Mart immediately said it would appeal to the Supreme Court.

The lawsuit was originally filed in June 2001, and its class-action certification has been hotly contested ever since. Wal-Mart now has 90 days to get the Supreme Court to reconsider the Circuit Court’s ruling, which the company described as being "sharply divided."

In 2008, the Bentonville, Arkansas, retailer settled a slew of class actions for $640 million and recently agreed to another $12-million settlement for discrimination at a single warehouse.

Employers of all sizes should be aware of renewed liability for gender-bias wage lawsuits following the passage of the Lilly Ledbetter Fair Pay Act, the first piece of legislation President Obama ever signed, which extended the statute of limitations far beyond what it used to be.

To be informed, safe and compliant with the new standards, get yourself a copy today of Personnel Concepts’ Fair Pay Discrimination Compliance Kit.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA to Increase Average Penalties–and Wants to Go Higher!

The Occupational Safety and Health Administration (OSHA), while legally bound to a fine structure with limits, is seeking to raise its average fine from the $1,000 range to the $3,000 to $4,000 range while awaiting higher fine approval from Congress.

OSHA Director David Michaels announced on April 22 what the agency is calling its Severe Violator Enforcement Program (SVEP), which replaces the current Enhanced Enforcement Program and takes effect in 45 days.

A concurrent OSHA announcement bemoaned the fact that fines have increased only once in 40 years, saying the agency is looking forward to the passage of Protecting America’s Workers Act (PAWA), which will increase the upper fine for serious violations from $7,000 to $12,000 and the top fine for willful violations from $70,000 to $250,000.

In the next 45 days, OSHA is conducting outreach to inform the nation’s businesses of its SVEP initiative and help them prepare.

Those companies wishing to stay fine-free should make sure they are in compliance with all of OSHA’s standards and regulations. Personnel Concepts offers a wide range of products to help you do so. Browse them today in our Web-based collection of OSHA Programs and Kits.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA to Emphasize Enforcement of Worker Training

Effective April 28–Workers Memorial Day–the Occupational Safety and Health Administration (OSHA) will step up enforcement of worker training requirements, especially for non-English speakers.

"OSHA will also assure that its Compliance Officers check and verify not only that the training has been provided, but that it was provided in a format that the workers being trained can understand,” Labor Secretary Hilda Solis said in announcement the increased enforcement.

OSHA currently requires that training provisions under OSHA standards be provided in a language or a form workers can understand.

To find out the specific training requirements for your business or industry, get a copy of Personnel Concepts’ OSHA Answer Book, an invaluable resource.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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California Adopts Federal Standard on Unpaid Interns

The California Division of Labor Standards Enforcement (DLSE) had long made life complicated for employers in the state who wanted to bring on board unpaid interns, adding an extra five criteria to those spelled out in the Fair Labor Standards Act (FLSA).

But all that has changed now that the U.S. Department of Labor (DOL) has launched a crackdown on using unpaid interns as unpaid employees. The Division announced recently, in an opinion letter, that it would henceforth use only the six federal criteria, which are: 

►The interns’ training, even though it includes actual operation of the employer’s facilities, is similar to that given in a vocational school;
The interns’ training is for the interns’ benefit;
►The interns do not displace regular employees but work under their close supervision;
►The employer does not derive an immediate advantage from the interns’ activities and, on occasion, its operations may be actually impeded;
►The interns are not necessarily entitled to a job when the training period ends;
►The employer and the interns understand that the interns are not entitled to wages for the time spent in training.

For those of you who want to be sure you’re following the proper rules and regulations in classifying your employees, Personnel Concepts offers a comprehensive but easy-to-follow FLSA Overtime Rules Compliance Kit.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA Unveils Goals of New Strategic Plan

The Department of Labor (DOL) has released its strategic plan for 2010-2016 with the overall objective being "good jobs for everyone," in the words of Secretary Hilda Solis.

The Occupational Safety and Health Administration (OSHA) recently held a Web chat to discuss its part in the DOL strategic plan, during which it characterized its overall plan in these words:

“OSHA is focusing on actively promoting safe and healthy working conditions for working men and women by: setting and enforcing workplace safety and health standards; delivering effective enforcement; providing outreach, education and compliance assistance; and encouraging continual improvement in workplace safety and health.”

More specifically, OSHA officials, including Administrator David Michaels, said they will seek to increase the agency’s enforcement and regulatory capabilities and make its presence more felt in the workplace.

The DOL budget has already risen twice during the Obama administration, and new investigators have been hired across the department, including OSHA. In addition, if the Protecting America’s Workers Act (PAWA) passes, new enforcement powers and increased fines and penalties will be available to OSHA.

In short, it’s a good idea to make sure your workplace is OSHA-compliant, not just in terms of posters displayed properly but also in having a safety plan in place. For the latter, you can rely on Personnel Concepts’ Emergency Action Program CD-ROM Plan Creator, which will generate your plan for you with a few keystrokes on your computer.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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A Billion-Year Contract for 100-Hour Work Weeks and No Pay

A federal judge has dismissed claims against the Church of Scientology by a (former?) member who alleges she was forced to work 100-hour weeks for no pay under a billion-year contract for the religion’s elite Sea Organization, according to a report in The Baltimore Sun.

U.S. District Judge Dale Fischer issued a written order saying the plaintiff, Claire Headley, was not covered by the Fair Labor Standards Act (FLSA) and its minimum-wage obligations because she worked for an exempt religious organization.

The Sea Org for which Ms. Headley worked traces its roots to 1967, when church founder L. Ron Hubbard took his most dedicated followers on sea voyages to explore early civilizations and spread his teachings. The group is now land-based and has a membership of about 5,000.

In her lawsuit, Headley also claims the Church of Scientology forces its members to have abortions and engages in forced-labor practices. Those two parts of the lawsuit remain under consideration.

If you’re not running a religious order or a family-only business, most likely your business is covered by the FLSA. Get a copy of Personnel Concepts’ FLSA Overtime Rules Compliance Kit and master the law as it applies to your workforce and their pay.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Got Interns? Then Maybe You’ll Get a Knock on the Door

The Department of Labor (DOL) and its Wage and Hour Division (WHD) are not only targeting independent contractor misclassification, but they’re also now coming after the misclassification–and misuse–of interns.

M. Patricia Smith, who went after New York employers for the misclassification of interns when she was that state’s labor secretary, is now heading up the campaign for the federal DOL as the agency’s chief enforcement officer.

Why is the DOL suddenly going after the misuse of interns?

Bottom line, it’s all about pay. Most interns should be paid unless it can be shown that they are truly trainees who are not doing any beneficial work for the company.

“If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law,” said Nancy Leppink, acting director of the DOL’s Wage and Hour Division.

The WHD has a six-point test to determine if an intern is really a trainee and not an unpaid employee, but most of it boils down to whether that person is being trained or whether he or she is doing work for the company that paid employees normally would do.

Employers, in this era of heightened scrutiny and enforcement of wage and hour compliance, it’s a good idea to get acquainted with the Fair Labor Standards Act (FLSA). A good source is Personnel Concepts’ FLSA Overtime Rules Compliance Kit, which will help you properly classify your employees.

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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No April Fool’s Joke: New Sheriff Cracks Down

Taking the stage in Chicago at what was once Jane Addams’ Hull House, where FDR Labor Secretary Frances Perkins got started, Obama Labor Secretary Hilda Solis launched a nationwide public awareness program called "We Can Help" on April 1.

"I have a message for those employers who break this nation’s labor laws and prey on vulnerable workers: It ends today," she said in her self-announced role as "the new sheriff in town." 

The new "We Can Help" campaign is essentially a public-relations effort to remind workers—particularly those in construction, hotels/motels, the food service industry and home healthcare—that the Labor Department exists to protect workers, not employers.

"This sheriff believes that workplace enforcement is not only our responsibility, but it is our moral obligation," Solis said, noting that she has increased enforcement staff in all of the Labor Department’s agencies, including 250 new field investigators for the Wage and Hour Division. "If someone is stealing your wages, you can and should call the Department of Labor," she said.

Employers, a good guide for staying in compliance with the Fair Labor Standards Act (FLSA) is to get a copy of Personnel Concepts’ FLSA Overtime Rules Compliance Kit. The kit will help you properly classify–and then pay–your workforce, while keeping the new sheriff and her posse from your doorstep.

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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