HR Compliance Issues at the Forefront
2008 has been a year of change in the world of Human Resources. There have been a number of new laws passed or extensions of old laws enacted and recent Supreme Court rulings have clarified compliance requirements in a few other areas. Below are a few of the recent legislative and court decisions that may affect your business:
Federal Contractors must use the E-Verify system to determine the employment eligibility of all new hires. This system is already in use by the Federal Government for newly hired employees. E-Verify is a free Internet-based system maintained by U.S. Citizenship & Immigration Services (USCIS) in coordination with the Social Security Administration (SSA). E-Verify checks the information provided in employees’ I-9 Employment Eligibility Verification forms against databases maintained by the Department of Homeland Security (DHS) and the SSA. Keep in mind that employers who use E-Verify must still complete the I-9 forms for its employees and keep records for inspection by DHS. However, employers who use E-Verify and follow the specified verification procedures are presumed to have not knowingly hired illegal aliens.
The E-Verification system is pretty simple to implement and can be accessed through www.uscis.gov/e-verify. Once in the web site the registration is about a 10 to 15 minute task. Be careful though, because estimates are the 7 to 8 percent of the E-verify results require additional follow up. If an employer receives a non-confirmation notice, there is an additional requirement to follow-up through the Department of Homeland Security and/or the Social Security Administration.
Protection Against Retaliation is Expanded
In two separate rulings, the Supreme Court expanded the protection employees have for retaliation after filing a complaint of discrimination. In CBOCS West, Inc. v. Humphries, the Supreme Court held that employers can be held responsible for retaliating against an employee who files suit under Section 1981 which was an anti-discrimination law passed in the 1800’s. The Supreme Court also ruled in Gomez-Perez v. Potter, Postmaster General that the employer could be held liable for retaliating against an employee who claims age discrimination under the Age Discrimination in Employment Act.
Neither of these decisions come as a surprise even though neither of the laws had specific wording banning retaliation against individuals who file complaints. Good employers should have strongly worded policies encouraging employees to come forward with complaints of discrimination or harassment and have no tolerance for retaliation of any kind regardless of how minor or groundless the complaint may be.
Guns in the Workplace – Florida and Georgia
On May 19th, Charlie Crist, the Governor of Florida, signed a law that would require employers to allow employees with concealed weapons permits to have guns locked in their car on the company property. Employers cannot ask employees if they have a concealed weapons permit nor can they search an employee’s vehicle to determine if there is a gun. This law goes into effect on July 1, 2008.
However, The Florida Chamber of Commerce and the Florida Retail Federation have filed a lawsuit in Federal court challenging the Constitutionality of the law as it violates the private property rights of business owners. The suit also claims that the law violates the OSHA General Duty clause to provide a workplace that is free from hazards that are likely to cause injury, death or serious physical harm. These groups are also seeking an injunction to stop in implementation of this law until the lawsuit can be heard. We are still waiting for the court to decide on the injunction.
Our recommendation is to wait until the last minute before changing your policies or wording in your handbook. If there is no injunction stopping the law from going into effect, most Florida employers will be required to make policy changes that allow guns to be locked in an individual’s car.
The Georgia Guns at Work law has a section that protects the private property rights of the business owner and allows private employers to implement a policy banning guns at the workplace. In the Georgia law, private property rights of the business owner trump the rights of individuals to carry guns on company property.
Family and Medical Leave Expands Coverage to Wounded Veterans
On January 28, President Bush signed into law important new amendments to the Family and Medical Leave Act (“FMLA”). These amendments relate to military families, creating two new circumstances in which employees with family members in the armed services may be entitled to FMLA leave. In certain limited situations, the amendments also raise the total amount of an employee’s FMLA leave entitlement to 26 weeks in a single year.
The FMLA amendments add the following leave entitlements for eligible employees:
- On an annual basis: Up to 12 weeks of leave for an “exigency” related to active duty service by the employee’s immediate family member; and
- Once during an employee’s employment: Up to 26 weeks of leave to care for a spouse, son, daughter, parent, or next of kin who is a member of the armed forces and who is undergoing medical treatment or who is medically unfit to perform military duties due to an injury or illness incurred while on active duty.
This amendment still only applies to employers with 50 or more employees within a 75 mile radius, so if you have less that 50 employee, this does not apply to your company.
On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act (GINA) that will protect Americans against discrimination based on their genetic information when it comes to health insurance and employment. In our opinion, this is one of those common sense laws and do not see a huge impact on the workplace as few, if any employers, do genetic testing on employees. However with the tremendous medical breakthroughs with regard to genetic testing and discovery of a potential predisposition to certain diseases, this law will protect employees who may be found to have a genetic flaw that puts them at a greater risk of contracting dreaded illnesses such as cancer, diabetes and heart disease.
The information contained in this newsletter is for informational purposes only and the people at McKenzieHR are not employment attorneys. Therefore, this information should not be construed as legal advice or legal opinion on any specific facts or circumstances. People reading this are urged to consult an employment lawyer concerning your own specific situation and any specific legal questions you may have. McKenzieHR would be glad to assist you in any way we can and would be happy to refer you to an employment attorney.