Legal Roundup-(HR)

 

I recently had the chance to catch up with legal eagle Joan Ginsberg. Joan is a Human Resources Professional/SPHR/Lawyer.  She is a wealth of advice, and is a great person to follow.   Joan blogs at www.joanginsberg.com and is on Twitter.com@joanginsberg  She is looking for a new career opportunity.Continuing with the Blog Series, It just seemed logical to tap into Joan’s expertise for a discussion about this.

Here are Joan’s thoughts on the most critical Legal/HR issues of the coming months:

1.Fair Labor Standards Act (FLSA). The Department of Labor recently received a funding increase to hire more investigators.  Some of these investigators will be hired into the Wage and Hour division, but many will be hired for the “Misclassification Initiative”.  This initiative will target employers who misclassify workers as independent contractors, depriving workers of protections and benefits enjoyed by workers. 

 2.Anti-Discrimination Laws. The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with enforcement of all federal non-discrimination laws.  EEOC filing and enforcement is at an all-time high.  Remember that there are many federal “protected classes” that an employer may not discriminate against. Many states have additional protected classes.

The EEOC has also received increased funding in 2010, which will permit the EEOC “to continue our focus on systemic enforcement.”  Employers should be updating handbooks and auditing their employment policies to include recent laws and amendments, and to ramp up training managers on the implications and enforcement of these laws. 

3.  Immigration Reform and Control Act (IRCA).  IRCA is the law that requires employers to verify the employment status of an employee and fill out a form (the I-9) showing that it was properly done.  Immigration and Customs Enforcement (ICE), the federal bureau that enforces IRCA, began their increased enforcement efforts back in July 2009, when they began audits 650 targeted businesses.  The ICE has made no secret of the fact that increased employer enforcement is high on their agenda, so HR pros need to self-audit their I-9 processes and make sure they are up to snuff.  According to my sources, the ICE is even citing typos and innocent mistakes like incorrect dates as actionable errors in their I-9 audits. 

It has been my experience in a small but successful 35-year-old staffing firm, “trust, but verify”  The company I worked for social security verified all applicants.  This now brings a more complex set of problems.  Stolen/fake #SS cards, driver licenses and other documentation. It really is a legal nightmare for both the company and the clients.

What are the solutions? Let’s get the comments rolling…….

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6 responses to “Legal Roundup-(HR)

  1. I agree with Joan that these three items are going to be brought back into focus with increased enforcement activity. I believe that one of the biggest things we as HR pros can do, when hiring an individual who may have questionable legal status in the US, is to look closely at the documentation and have the guts to tell management “NO, this person can’t be hired”. The fakes really aren’t that good. If you’ve seen one set of bad docs, they are actually really easy to spot.

    This is a particularly prevalent problem in the manufacturing and general labor realm. We can blame failure on e-verify or other digital solutions, but the best defense for I-9 violations is a set of eyes and some intestinal fortitude.

    Great post Shennee!

  2. Tammy- Thanks for your feedback! You are right. We all really need to be alert to prevent costly hiring mistakes.

  3. I agree the employee vs. contractor issue is pretty big.

    We recently had a candidate use someone else’s ID. I don’t know whose identification it was…. daughter, niece, family friend, but it appeared there were about 25 years difference between the photo and the person in front of me. There’s always something to keep you on your toes in HR, isn’t there?

  4. Tammy – intestinal fortitude is definitely needed in HR. Another thing HR can do is tell management that, if the person is hired,”here is the risk that you are buying in potential increased enforcement and in potential CRIMINAL penalty. Is this worker really worth that much?” Let them say yes and then document that they were counseled as to the risk of criminal action. If you tell the managers that you are going to document this decision and that you advised them of the risks, maybe they will be more understanding.

    Krista – identity fraud/theft is one of the reasons that some employers and associations are against using E-Verify. If the docs don’t look right HR is still on the hook despite using E-Verify. Seems unfair.

  5. Joan-It was a pleasure working with you on this post. I really appreciate your contribution. Looking forward to meeting you IRL soon…

  6. Very nice post and I am a Joan Ginsberg fan. It’s nice to have someone so interesting and knowledgeable on HR and law.

    These are all good topics but I think that healthcare is high on the list for most businesses.

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