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Sunday, December 28, 2008

Human Resources 2009

Human Resources 2009: Make Your Resolutions Today
Reprint - Opelika & Aburn News, Dec. 28, 2008

To keep your employer out of the courtroom, the EEOC, DOL, OSHA, DHS offices, etc, during 2009, I recommend you make a few simple New Year's Resolutions Today.
Resolve to audit your Handbook, Policies & Forms. Not just updating your policies in light of changes to the Family and Medical Leave Act, the Americans with Disabilities Act, E-Verify, an aggressive labor movement and Democratic Administration. Handbooks, Policies and Forms should be reviewed by an outside professional at least once a year to ensure that they not only remain compliant with laws and regulations, but also are aligned with your organizational goals and best management practices.

Resolve not to rely on employment at-will when firing employees. Employees who are not given a reason for their termination fill in the blank, assigning the termination to the discriminatory or retaliatory mindset of their boss. What kind of a message are you sending to the rest of your workforce when you fire someone for a reason such as "just because I thought it was in the best interest of the Company".

Resolve to Document, Document, Document. Poor record-keeping practices can sink your Company’s ship in a Courtroom or at the EEOC. With the new Democratic Administration it will be extra challenging trying to prove that: an employee deserved to be fired; retaliation was not a reason; the person did not deserve to be hired or promoted; a worker had performance deficiencies; a proper harassment investigation was conducted; workers were paid correctly their regular and overtime wages; employees received training; everyone has a sign off confirming they were aware of company rules; etc.
Resolve not to be overly nice. Never overreact and fire an employee before you've conducted a proper “cool headed” investigation with written disciplinary procedures. Failing to react to a situation can be just as harmful. Letting an employee's infractions slide makes it harder later to prove consistency. Remember my # 1 HR Rule: “No Good Deed Goes Unpunished”. Don’t allow supervisors to make the mistake of trying to motivate under performing workers with raises, bonuses, or overly positive (untrue) performance reviews.

Resolve to keep emotions in check. A supervisor who is angry with an employee for making an unjustified harassment complaint and reacts by taking harsh action can get you in hot water with the EEOC with a retaliation Charge. Keep a sharp eye over adverse employment decisions that affect employees who have recently engaged in protected activity, or who fall in a protected category.

Resolve to keep Counsel in the loop. The time to seek wise counsel is not when a legal problem is steaming teapot. Rather my #2 HR Rule: “Nip it in the Bud”! If you have any doubts about your judgment to handle a difficult situation, it is worth 30 minutes of consultation time to stay out of court and egg off your face, not counting racking up huge legal bills later and putting your job on the line.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com 

Sunday, December 21, 2008

Immigration Law Update

Immigration Law Update: Lots of Changes Going On

Reprint - Opelika & Auburn News,


New Form I-9 in Interim Final RuleEffective Feb. 2, 2009, the federal Department of Homeland Security (DHS) has once again revised Form I-9 requirements and dictated the use of a revised form. Every employer is mandated by law to have newly hired employees complete a Form I-9 to verify employment eligibility. Among the changes to Form I-9:
Forms I-688, I-688A, and I-688B have been eliminated from the list of documents that can verify identity and employment authorization;
The employee attestation section is updated so that just above the employee’s signature appears the statement: “I am aware that federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form.” and
Added the category of “non-citizen national” to the classification list.

New H-2B Visa RegulationsOn Dec. 19, 2008, the Department of Homeland Security published new regulations that revise the H-2B visa program. The H-2B program is a temporary work visa program for foreign workers in nonfarm jobs. Here are the changes:
Non-immigrant workers in occupations other than agriculture, logging, or registered nursing can perform labor or services in the United States on a temporary or seasonal basis;
Employers must now attest that they have fully complied with all H-2B program requirements;
Employers are prohibited from imposing certain fees on prospective H-2B workers as a condition of employment; and
Under the Department of Labor regulations, which also revised the H-2B labor certification process, employers must apply to DOL for H-2B labor certification before they can petition DHS for the admission of H-2B workers to the U.S.

Updated H-2A Visa ProgramEffective Jan. 17, 2009, Department of Homeland Security has revised regulations that govern the H-2A visa program. The H-2A visa program allows foreign workers to do farm work in the U.S. The H-2A hiring process is streamlined for employers to encourage greater use of the program as follows:
Permits non-immigrant agricultural workers to provide labor or services in the United States on a temporary or seasonal basis;
Permit H-2A workers to more freely change employers if the new employers participate in E-Verify program;
Prohibit employers and recruiters from imposing certain fees on prospective H-2A workers as a condition of employment; and
The Department of Labor also substantially revises its companion regulations, effective Jan. 17, 2009, that govern the H-2A labor certification process so that employers must apply to DOL for H-2A labor certification before they can petition DHS for the admission of H-2A workers to the United States.

E-Verify Mandated for Federal Contractors/Subcontractors
Beginning June 30, 2009, federal contractors and subcontractors will be required to use the federal E-Verify system to verify the employment eligibility of employees. The final rule was published November 14, 2008, amending the Federal Acquisition Regulation (FAR) and implementing President Bush's Executive Order 12989 which he signed June 6, 2008. (see O&A News Archives)
Practical Advice: Review of the new regulations and forms at http://www.dhs.gov/ and http://www.dol.gov/ is your critical first step. Next, proper I-9 Form completion, adoption of a new immigration compliance policy in your employee handbook, supervisor training, auditing 1-9 recordkeeping and E-Verify training are critical to a smooth transaction. Happy New Year from the outgoing Bush Administration!
 
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com 

Sunday, December 14, 2008

New FMLA Rules

New FMLA Rules: Countdown to January 15, 2009
Reprint - Opelika-Auburn News, Dec. 14, 2008



The Department of Labor (DOL) published 750 pages of final regulations governing the Family and Medical Leave Act (FMLA) effective January 16, 2009. Here are a few of the highlighted changes (there are many more):

Who is an “Eligible” employee?
The FMLA requires that employees must work for an employer for at least 12 months to be eligible, but these 12 months need not be consecutive. The final regulations allow for a break in service of up to seven (7) years.

Serious health condition redefined:
"Continuing treatment by a health care provider" requirement has been clarified to require that the two visits must occur within 30 days, and the first visit must occur within seven days of the first day of incapacity, absent extenuating circumstances. When it involves only one visit, plus continuing treatment, has been clarified to require that the visit must occur within seven (7) days of the first day of incapacity. "Periodic treatment" of a chronic serious health condition has been clarified to mean at least twice a year.

What is a Military Leave “Qualifying Exigency”?
Short-notice deployment; military events and related activities; childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities; and additional activities.

Intermittent or reduced schedule leave changes
Employers must calculate intermittent or reduced schedule leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided it is not greater than one hour.

Substitution of paid leave for FMLA Leave
Employers may apply their normal leave policies to the substitution of all types of paid leave for unpaid FMLA leave, including vacation, personal time, PTO etc..
Bonuses entitlement: A huge change is that employees may now be disqualified from receiving a perfect attendance award due to FMLA leave.

Light duty does not count as FMLA time
Light-duty assignments do not count as FMLA leave time.

New Employer notice requirements
A general FMLA notice may be distributed by handbook, or to each new employee upon hire, rather than requiring that it be distributed to all employees annually as the old regulation required. Employers now have to notify employees of their eligibility to take FMLA leave within five (5) business days (was two), and have five (5) business days in which to notify employees in writing of whether or not leave is designated as FMLA leave and other information set forth on the new response form.

Employee notice requirements defined:
Employers may require employees to follow their usual notice and procedures for requesting leave, so long as the employer's usual reporting procedure is not more stringent than the FMLA allows.

Medical provider contact expanded:
Employers may now contact the employee's health care provider directly and without the employee's consent. The direct supervisor is prohibited from making contact. Employees can also be required to sign a HIPAA release to allow the employer to obtain medical information.

Brand New FMLA Forms
The are 5 new forms and a mandated notice published with the final rules

Updated FMLA Policy
Beginning January 15, 2009 all existing employer FMLA policies and forms will be out of compliance.

5 Practical Human Resources Steps Alabama Employers Need to Take Now to Brace for FMLA Changes:
  1. Update your FMLA Policy
  2. Update all your FMLA Forms
  3. Audit all your leave procedures
  4. Train all Supervisors on the new procedures and their key roles
  5. Update your posters
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com