DOL Officially Ends Union Reporting Requirement

The Obama administration’s Department of Labor (DOL) announced back in January that it was ending the requirement for unions to submit form LM-2 for financial disclosure purposes, and yesterday (Oct. 13, 2009) it made it official.

The DOL’s Office of Labor-Management Standards yesterday published in the Federal Register a recission of the Bush-era rule that had implemented usage of the LM-2 for unions with annual revenues of $250,000 or more. The rule also applied to smaller unions if their other reports were found to be incomplete or irregular.

The LM-2 was a document developed by the Bush administration to bolster the 1959 Labor-Management Reporting and Disclosure Act (LMRDA).

To read the official posting of the rescission in the Oct. 13 Federal Register, visit: http://edocket.access.gpo.gov/2009/E9-24571.htm


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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EEOC to Hold Town Hall Meetings on Proposed ADAAA Regs

The EEOC and DOJ’s Civil Rights Division will hold four town hall meetings throughout the nation to share information and gather comments about proposed regulations in the recently enacted Americans with Disabilities Amendments Act. Each town hall meeting will consist of two sessions, one for disability advocates and one for the employer community, offering opportunities for both the business and disability communities to comment in person. The meetings will take place by Nov. 20 in Philadelphia, Chicago, San Francisco and New Orleans.

In addition, as part of a Federal Government-wide job fair for people with disabilities during early Spring 2010, the EEOC and other agencies will provide workshops throughout the day on a variety of topics involving reasonable accommodations for Federal workers and applicants. At the job fair, people with disabilities should be able to register, submit materials and perhaps get hired on the spot.

Acting EEOC Vice Chair Christine M. Griffin said, “For too long, Americans with disabilities have been pushed to the rear of the hiring line. The EEOC’s town hall meetings and workshops, in concert with other Administration measures, should position workers with disabilities for a fair chance at a federal job.”


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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IRS to Audit 5,000 Random Employers Beginning Next Month

If you’ve been underpaying and/or under-reporting your company’s payroll taxes, the IRS wants to know–and collect what’s due.

With the annual "tax gap" between what’s owed and what’s paid estimated at $290 billion, the Internal Revenue Service is siccing its agents on 5,000 randomly selected employers beginning in November 2009 as much for a learning lesson as a collections effort.

The IRS is publicly calling this a National Research Program (NRP) to downplay the collections aspect, but the research itself will be employed to create more functional compliance and collection programs.

The NRP will focus on four areas: worker classification, fringe benefits, reimbursed expenses and owner compensation. The worker classification test will be for independent contractors to determine if a company is improperly classifying employees as independent contractors to save fringe compensation and to shift the tax burden onto the misclassified contractor.

In September 2009, the U.S. Government Accountability Office (GAO) released a report urging the Department of Labor (DOL) and IRS to increase “their efforts to probe the improper classification of workers” as independent contractors, educate employers and use penalties to deter misclassification. The GAO was particularly critical of the DOL’s Wage and Hour Division for its very limited enforcement activity.

If your company is targeted, expect an IRS audit of your W2s and other wage records as well.


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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House-Senate Panel Votes to Extend E-Verify Three Years

This week a House-Senate panel reconciling budget measures voted to extend for three years the E-Verify online employment eligibility system. At the same time, the Department of Homeland Security (DHS) formally withdrew the "no match" safe harbor rule of the Bush administration.

The Bush-era "no match" rule gave employers three months to straighten out mismatched employee Social Security numbers or immigration documents that conflicted with what’s on record in D.C. After three months, the employers would have to fire those employees who couldn’t produce evidence of proper documentation (presumably because they’re using fake documents and numbers to cover up their illegal immigrant status).

Predictably for the Obama administration, the "no match" reversal was hailed by union supporters, which is somewhat ironic since unions just as predictably fear lower-cost labor as represented by undocumented workers, but the unions are engaging in a trade-off for passage of the Employee Free Choice Act (EFCA).

"The no-match program was a flawed and ineffective enforcement tool that would have hurt U.S. citizens and other authorized workers," said Richard Trumka, president of the AFL-CIO.

No doubt.

As for the E-Verify extension that has long been opposed by the U.S. Chamber of Commerce and other business groups (that rely on undocumented workers for cheap labor), even those who might otherwise cheer the extension saw a Trojan Horse in its midst.

Said a statement by the Federation for American Immigration Reform (FAIR), the extension is "further evidence of the Obama administration’s and the congressional leadership’s effort to raise a smokescreen while it dismantles all effective controls against illegal immigration."

No doubt.

Stay tuned to see what’s really going to transpire on the immigration front, provided the health care reform front ever recedes from center stage.


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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Democrats Seek to Overturn Supreme Court’s Age Discrimination Ruling

Business cheered the Supreme Court’s decision in Gross v. F.B.L. Financial Services that set the bar higher for age discrimination claims by employees. Prior to Gross, employees need merely show in court that age was one factor in their adverse job decision (a firing or passing over for promotion, for instance). Now they must show that it was the main factor. Failing that proof, a trial cannot proceed.

However, as they did with the Lilly Ledbetter decision of 2007, and as legal observers predicted when Gross was decided, the Democrats are fighting back against the high court.

Congressional Democrats in the House and Senate have concocted the Protecting Older Workers Against Discrimination Act (POWADA–POW?), which re-establishes the standard that the Supreme Court rejected, that of merely showing age was a factor in the adverse job decision.

“This extremely high burden really undermines workers’ ability to hold employers accountable,” said Senator Tom Harkin, Democrat of Iowa and chairman of the Senate Health, Education, Labor and Pensions Committee during a news conference.

Harkin was joined by co-sponsors Senator Patrick J. Leahy (D.-Vt.) and Congressman George Miller (D.-Calif.).

"The same Supreme Court responsible for the backward ruling against Lilly Ledbetter has now thrown another legal barrier in front of hardworking older Americans," added Miller, chairman of the House Education and Labor Committee.

The three Democrats are also enthusiastic sponsors of the Employee Free Choice Act (EFCA), which business has denounced as undemocratic because it virtually does away with the secret ballot in unionization drives.


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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Faking a Sick Day? You’ve Got a 15% Chance of Getting Fired

About one-third of all employees who call in sick are faking it, a percentage that has held steady over the years. However, the chances of getting fired for abusing sick-day privileges are falling, down from 18 percent a year ago to 15 percent today, according to a survey by CareerBuilder.com, a jobs site.

The number of U.S. employers who check up on absent workers declined to 29 percent this year from 31 percent last year and 35 percent the year before, the research showed.

However, employers this year are turning the other cheek more than before, metaphorically speaking, because they believe stress and burnout from the challenges and aftershocks of the economic meltdown are playing a role.

Or could it be the revenge of Ferris Bueller?

More likely the latter.


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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Feds Clarify Rules on Contractor E-Verify Mandate

The E-Verify online employee status system faced two new hurdles in September. On Sept. 8, the E-Verify Contractor Rule was set to go into effect but faced last-minute court challenges, and on Sept. 31 funding for the system itself was in danger of expiring.

On the first issue, the courts sided with the United States Citizenship and Immigration Service (USCIS) in allowing the contractor mandate to go forward. On the second issue, the Senate passed a last-minute bill to fund E-Verify through Oct. 31 when a yearlong funding bill for the parent Department of Homeland Security (DHS) is expected to pass and extend E-Verify authorization indefinitely.

Since the Sept. 8 implementation of the E-Verify mandate, contractors have been seeking clarification, and over the weeks USCIS has obliged them by posting answers to common questions. Here’s what they’ve said:

Who’s affected by the rule? Any entity accepting a federal contract on or after Sept. 8, 2009, with a length of 120 days or more and a value of $100,000 or more must use E-Verify to certify its employees’ legal status to work in the United States. The same goes for subcontractors meeting the same conditions but with contract values of $3,000 or more. The rule does not apply to contracts for off-the-shelf procurement.

Which employees must be verified? The simple answer is all of them, both existing and new hires.

When do we have to enroll in E-Verify? Once you sign a federal contract, you have 30 days to enroll in E-Verify. Then you have 90 days to complete the verification process for your workforce.

What if we already have a federal contract we’re working on? Then the rule doesn’t apply. The E-Verify Contractor Rule applies only to contracts issued with the E-Verify written notification on or after Sept. 8, 2009.

What if we’re already enrolled in E-Verify? You’re fine except you must check your profile to ensure that your business is listed as a "federal contractor." If not, then update your profile to include that specification.

What does it cost to enroll in E-Verify? The system is completely free and relies on databases at the DHS and the Social Security Administration to verify legal residency status and Social Security Numbers.

 


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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Failure to Display Labor Law Posters Costs Hotel Big in Court Case

Here’s a case that hinged on the statute of limitations for employment-based lawsuits–and how failure to post a basic federal and state labor law poster cost The Claridge Hotel in Atlantic CIty big time.

Two Chinese national employees were dismissed by the hotel after one, a male chef, accused the other, a female room attendant, of sexual advances. After eventually speaking to lawyers, both filed claims of discrimination based on race and national origin–but they filed them after the 300-day statute of limitation had expired.

Crafty lawyer for said Chinese nationals, however, argued that the statute should be extended because the hotel had posted no notification of the employees’ civil rights under American law and that the two were unaware such laws even existed since they didn’t exist in their homeland.

Crafty lawyer prevailed, and judge sent the issue to jury trial, where big bucks are at stake.

The court put it this way: “An employer’s failure to post the required notices of anti-discrimination laws will equitably toll the 300-day limitations period until such time as the employee learns or reasonably should have learned of her rights through some other means.”

Moral: Get your applicable state and federal labor law posters now and keep them displayed prominently in all applicable languages.


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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Sears Hit With Largest ADA Fine Ever at $6.2 Million

Sears Holdings Inc., without admitting any wrongdoing, has settled an Americans With Disabilities Act (ADA) claim for $6.2 million, the largest single fine in history according to the enforcing agency, the Equal Employment Opportunity Commission (EEOC).

The EEOC claims the Hoffman Estates, Ill.-based retailer fired hundreds of employees who took workers’ compensation leave after being injured on the job. The lawsuit said Sears failed to offer injured workers a reasonable accommodation that would have allowed them to return to work.

According to terms of the consent decree signed by Sears, the company agrees to abide by the terms of the ADA and accordingly modify its workers’ compensation policy.

 


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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Majority of Workers Say Employers Lack H1N1 Preparations

Worse, nearly 85 percent of those surveyed by Mansfield Communications said they feel pressured to come to work even if they come down with the H1N1 swine flu because of the tough economy. Nearly 70 percent also said their employers have communicated nothing and made no preparations for a possible swine flu resurgence.

On a more positive note, 80 percent said they felt knowledgeable about what precautions to take against the influenza, but 47 percent of respondents still said they would go out into public even if they come down with the flu.

“The gap between professed knowledge and practice is alarming,” Mansfield spokesman Rob Ireland said. “Nearly half of respondents said that they would continue to engage in public activities with full knowledge of their infection. Clearly, there is much to be done to educate America’s workforce and help people act appropriately in order to contain the spread of H1N1.”

Employers should avail themselves of two influenza and pandemic flu products by Personnel Concepts that will help educate their workforces and also help establish a sound H1N1 workplace preparation plan: Our H1N1 Swine Flu Poster and our Pandemic Flu Workplace Preparedness Kit. Get yours today.


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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