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Will "Uncle Sam" Ask You to Open Your Wallet?

Issue: Winter 2010
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Today’s employer must tread carefully through the maze of new regulations, enforcement of the weathered ones, and prepare for more scheduled changes.

It’s no wonder that regulators are finding non-compliance during their audits! How can an employer maintain their business operations and stay abreast of the legal requirements? The best solution is to audit yourself before a government representative knocks on your door to do the same thing. Consider the following topics for review and institute a regular review of your practice.

Take the time to periodically review the employment policies you have in place. These are typically defined in an employee handbook or a company policy manual. This document is your backup for unemployment claims, discrimination claims, terminations, etc. Your handbook or manual should be reviewed at least twice a year to remain in line with the current pace of regulations. Ignoring this important document could possibly cost you monetarily, not to mention the emotional toll in the added stress. Find someone who is very well-versed in the currently active legislation, and have them review your policies as well. Not only does your handbook and manual need to cover all the right subjects, they also require the correct verbiage. Discrimination claims are rampant in today’s economy, so cautionary steps
are advised.

Hiring practices are a key area that individuals have learned can yield large dollar amounts in litigation. Have someone in the know review your employment application to ensure you meet all the guidelines from an Equal Employment Opportunity Commission (EEOC) and Americans with Disabilities Act (ADA) perspective. Asking the wrong question on an application wreaks its own havoc, when uncovered by a government agency. You will also want to update your job descriptions, and ensure they are ADA and EEOC compliant.

These documents are another important tool for your hiring process, but they can also be utilized as evidence in an agency inquiry or in a court of law. Taking the time now to review and update will save you hours of time and frustration in the future. Now that your application and job descriptions are current and compliant, consider the person who will be conducting your interviews. This person should be well-versed in what to ask and what not to ask during the interview process. You should periodically talk about the questions they are asking so that you are confident they are not drifting into the realm of discriminatory interviewing. If they use a list of standard questions, review them each time you do your audits. If new questions have been added, or old questions re­fashioned, you will want to know they remain within the EEOC and ADA guidelines.

On September 15, 2010, Immigration and Customs Enforcement (ICE) agents began serving notices on 500 businesses to inspect the Employment Eligibility form commonly referred to as the I-9 form. The Immigration and Customs Enforcement Agency has been given worksite enforcement guidelines by the Department of Homeland Security (DHS) to focus their resources on criminal prosecution of employers who knowingly hire illegal workers. ICE will conduct on-site audits of I-9 forms for accuracy and completeness. An additional 1500 inspectors were added to the agency’s workforce this year in order to carry out the new DHS guidelines. Take the time now to review your forms, make corrections, and store them properly. If you are not sure of what constitutes “accuracy and completeness,” you should seek the advice of someone who is knowledgeable in this area. On September 28, 2010 ICE announced that it had settled with clothing retailer Abercrombie & Fitch on a fine in excess of $1,000,000 for violations of the Immigration and Nationality Act. The violations related to an employer’s obligation to verify its workers for employment eligibility. The company was not in violation of knowingly hiring unauthorized workers in the investigation. Instead, this case focused on technology-related deficiencies in Abercrombie & Fitch’s electronic I-9 system, and began in November, 2008, with an I-9 inspection of the company’s retail stores in Michigan.

Your handbook or manual should be reviewed at least twice a year to remain in line with the current pace of regulations. Ignoring this important document could possibly cost you monetarily, not to mention the emotional toll in the added stress.

Employment posters are mandatory by state and federal regulation. They also help you manage employment law compliance, improve workplace safety, and supplement employee training. Be sure you have the most current posters in place, and any torn or unreadable posters are replaced. Your posters should be displayed in an area that is frequented by your employees, and hung at a level that the majority of your personnel will be able to comfortably read the poster.

Last, but certainly not least, are your safety policies. You should meet with your employees on a regular basis to discuss steps in keeping compliant with regulations as well as any safety issues employees want to address. Review your meeting notes to ensure you have addressed any of the issues employees brought to your attention, and, if you have not, be prepared to explain why not.

The best advice to any employer, is to think how you might respond to questions under oath about your employment practices. Is there an area that you believe an attorney might place focus, if you were ever called to testify in a hearing? If there is the slightest twinge, when it comes to mind, then you should be addressing that issue immediately. Don’t wait for the government to do your auditing for
you, because if you do, they will be asking your wallet to “open wide”!

For more information on employment policies, compliance with employment regulations, and record management, please call the Schein Business Center 855-556-9100 or visit www.empowerhr.com.