#NFIBLive. Presented by: Beth Milito

Transcription

1 Presented by: Beth Milito

2 Meet Our Speaker Beth Milito, Esq. NFIB Small Business Legal Center

3 Immigration Reform Comprehensive immigration reform moves to the House of Representatives. Enhanced employment verification and targeted immigration reform are likely. States have become aggressive in passing immigration laws GA, AL, SC and IN.

4 Increased enforcement continues. U.S. Immigration and Customs Enforcement (ICE) served Notices of Inspections to 1,000 employers. FY 2010 ICE criminally charged 180 business owners, employers, managers and/or supervisors.

5 Immigration Laws: Form I-9 Form I-9 for all new hires Form I-9 penalties range from $275 to $2,200 If your business has established a pattern or practice of hiring illegal workers, you may face jail time

6 Section 1 Filled out by employee

7 Section 2 Filled out by employer

8 Immigration Laws: Form I-9 Perform an I-9 Audit If you find incorrect information, correct and initial or have employee fill out a new form and attach the old form If information is missing, fill in the information and initial and date that section (don t backdate!) Store all I-9s together From NFIB Newsroom: Form I-9 Update

9 Union & NLRB Update

10 Union & NLRB Update Pay attention to regulatory initiatives at DOL, EEOC and NLRB. Obama Administration has focused on workers rights. NLRB activity Ambush election The U.S. Court of Appeals stopped NLRB From Enforcing Notice Posting Rule From NFIB Newsroom: Supreme Court Agrees to Hear Challenge to Unconstitutional NLRB Recess Appointments

11 NLRB and Privacy Concerns This place is a hell hole. If I had a car today I would up and quit.

12 NLRB and Privacy Concerns Expanding technology continues to impact the workplace: NLRB has held that public postings may be protected under the NLRA Employee postings on Internet may be protected speech From NFIB Newsroom: Employers: Exercise Caution When Firing for Facebook

13 NLRB & Employee Handbooks

14 Wage & Hour Update

15 Wage & Hour Risks Misclassifying employees Not paying employees correctly for work time

16 Overtime Who gets it? Exempt v. Nonexempt Nonexempt employees Paid for actual hours worked Must keep records of time worked, e.g. timesheets or timecards Must earn at least minimum wage for all hours worked Entitled to overtime for any hours worked over 40 in 7-day work week at rate of 1½ times regular rate of pay

17 Exempt employees Paid regardless of quantity or quality of work No limit on the number of hours an employee may work or be required to work No minimum wage requirement No overtime requirement

18 Overtime Who gets it? Exempt v. Nonexempt Categories of exempt employees Executive Administrative Professional Highly Compensated Outside Sales Computer Professional Equity Owner

19 Overtime Doing the Math Covered, nonexempt employees must receive one and one-half times the regular rate of pay for all hours worked over 40 hours in a 7-day workweek

20 Overtime Hours Worked Hours worked may include meal periods taken while continuing to work, coffee and snack breaks, travel to customers, travel between work sites.

21 No Overtime Waivers An employee may NOT waive his or her right to overtime pay!

22 What Does the US DOL Say About Unpaid Interns and Volunteers?

23 6 Factor Test for Unpaid Interns 1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; 2. The internship experience is for the benefit of the intern; 3. The intern does not displace regular employees, but works under close supervision of existing staff; 4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; 5. The intern is not necessarily entitled to a job at the conclusion of the internship; and 6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

24 Paying Holiday Pay Are you a federal employer? If yes, then you have to pay holidays. Do you have a written or informal policy that says that you will pay employees holiday pay? If yes then Yes. If no then No. Fact: There is no federal or state law that requires private employers pay employees holiday pay unless the employee actually works the holiday.

25 Employee or Contractor? Require documentation to establish that the consultant is truly an independent contractor, such as business cards, licenses, and certificate of insurance Put your agreement in writing set forth the terms of your relationship with a consultant to show the IRS and state agencies that the consultant is an independent contractor Do not treat contractors like employees

26 Help is Available Available FREE at

27 Background Checks

28 Background Checks Risks of Not Performing History of theft History of violence History of drug, alcohol abuse Employee reckless driving record Falsification of credentials: licenses, employment, education, certifications Negligent hiring lawsuit

29 Risks in Performing Background Checks FTC fines for violating FCRA EEOC enforcement action for disparate impact Ex.: EEOC v. Kaplan Higher Educ. (2010), Kaplan rejected applicants with poor credit history. Private plaintiff suits

30 Background Checks - Types Credit check Criminal background Check references at prior jobs Obtain independent verification education and/or certification(s)

31 Background Checks Disclosure & Release Fair Credit Reporting Act (FCRA) governs employer activity, not just credit lenders Prior to seeking criminal or credit background data, always: Fully disclose, in a document solely for this notice Obtain applicant or employee signature on a separate form, not just on application

32 Background Checks Credit Information For credit background: Must be a job related necessity Bankruptcy information should be disregarded Employers usually may not rely upon single garnishments

33 For criminal background: No federal prohibition, but follow EEOC guidance Focus on conviction records not arrest records Focus on job relatedness (such as cash management, access to financial data, contractual requirement) Focus on the seriousness of the crime and the time elapsed since it occurred

34 Background Checks EEOC Best Employer Practices As a best practice, and consistent with applicable laws, the Commission recommends that employers do not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity. (Guidance pp )

35 Background Checks State Laws 20+ states have either proposed or passed legislation limiting employers from performing background checks. Illinois & Oregon: passed

36 Contact the Speaker