HR and the Law in the News 
January 2009, Volume 8, Issue 1

FiveL Company's consulting services include:

• Interactive, industry specific, and nationally
recognized management
training programs;

• HR Compliance reviews, handbooks, policies & procedures;

• Affirmative Action Plans for Small Business

• Salary surveys and compensation studies;

• ...and more.

• Visit www.FiveL.net for more information.

FLSA Faux Pas

  

Hot Hits!! Education Corner

 

Form I-9 to Change Yet Again! 

 E-Verify: Are You a Covered Contractor?

FMLA 2009 Notices & Poster Now Available!

  

Spotlight!

FLSA Faux Pas

Oops!  Have you had that experience when reassessing whether an employee is properly classified as exempt or non-exempt (hourly)?  If so, you are not alone.  Take heart in the fact that you made a self-discovery unlike some companies who face the realization in litigation.  Here are a few recent examples:

  • December 22nd - 11th U.S. Circuit Court of Appealsaffirms $35 Million award for misclassification of store managers;
  • December 2nd - DOL settles FLSA claim for more than $1.8 Million as result of misclassification of nearly 1,000 employees as exempt including payroll systems analysts and accountants, project manager, business analyst,  field engineer, help desk representative, network administrator and more;
  • December 9th - Company settles FLSA lawsuit for $54 Million alleging employees worked off the clock during break times;
  • November 28th - 8th U.S. Circuit Court affirms payment of more than $90,000 to 25 employees for failure to pay overtime despite fact that payroll was outsourced to vendor and because the employer could not demonstrate "good faith" or "reasonable grounds" that it had not violated the FLSA; and 
  • November 18th - Company settles FLSA lawsuit for $850,000 to 764 former employees, including some unauthorized workers - for working unpaid overtime and improper wage deductions.

Remember that the U.S. Department of Labor works from a presumption that nearly every worker in the United States is eligible for overtime and at least minimum wage as provided for in the federal Fair Labor Standards Act (FLSA). Exempt employees are those that are exempt from the minimum wage of and overtime requirements of the FLSA. But in order to qualify for exempt status an employee must pass three tests: (1) minimum salary; (2) salary basis; and (3) duties test. 

What about other issues such as docking pay from exempt and non-exempt employees' wages. When may you do so and how?  Or how about bonuses?  When and how can they be paid to exempt and non-exempt employees?  A common question recently has been furloughs: Can I properly furlough an exempt employee for less than a full workweek?  If so, how?

And...don't forget about your state's wage and hour regulations.  Currently, at least 17 states have their own "white collar" regulations that define "exempt" employees.  So you need to ensure that your exempt employees meet the tests to qualify for exempt status under the federal as well as state regulations. 

Want to learn more? Join FiveL Company's next webcast, "The Latest News in Wage & Hour Administration" on Wednesday, Janaury 28th from 10:00 - 11:00 a.m. EST.

     Hot Hits!! Education Corner

Public Seminars & Presentations

Wednesday, January 21st "Did I Hear You Say What I THINK You Meant?!" presented for the Chesapeake HR Association, 5:30 - 7:15 p.m.

Client Training Programs

"Proactive Performance Management" (2)

NEXT WEBCAST!

Wednesday, January 28th, "The Latest News in Wage and Hour Administration," 10:00 - 11:00 a.m. EST.  Register today! This webcast has been pre-approved by HRCI for 1.0 general credit hour.

"The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute’s criteria to be pre-approved for recertification credit."

Discounted annual webcast subscriptions for 2009 are also now available. Discounts are available for individual webcasts for groups of 5 or more too! 

Archived are not eligible for continuing education credits through HRCI. Visit the website for more detailed information. 

 Form I-9 To Change Yet Again!    

On Wednesday, December 17th the U.S. Department of Homeland Security published an interim final rule in the Federal Register, "Documents Acceptable for Employemnt Eligibility Verification."  The new rule, which will take effect February 2, 2009, modifies the Form I-9 as well as the list of documents that are/not acceptable for verifying a newly hired employee's identity and eligibility to work in the U.S. This is the third revision to the Form I-9 since June 2007.

Just a few of the changes that will take effect February 2, 2009 are:

  • Expired documents such as passports will no longer be accetable;
  • Forms I-688 (Temporary Resident Card), I-688A/I-688B (Employment Authorization Cards) are no longer valid;
  • The phrase "Employment Eligibility" is replaced with "Employment Authorization."

Along with the new Form I-9, DHS will be publishing an updated "Handbook for Employers" with instructions, samples, FAQ's and more for completing, updating and retaining the I-9 Forms. DHS estimates that each employer will need approximately 30 minutes to research the changes mady by this rule and learn what an acceptable Form I-9 supporting document is.  I wonder if you will agree. Stay tuned for the New Form and Handbook which should be available for download from the U.S. Citizenship and Immigration Services website by February 2, 2009. 

  E-Verify: Are You a Covered Contractor?

Effective January 15, 2009 covered federal (sub)contractors are required to begin using E-Verify. Unlike Affirmative Action Plan requirements, the coverage for E-Verify is broader and applies to certain contracts regardless of how many employees you have. The following Prime and Subcontractors are covered under the new E-Verify regulations. 
 
 Covered Prime Contracts Generally Are:
  • Contracts awarded after January 15, 2009; this may include current prime contracts that are renewed AND
  • that have a contract value of at least $100,000; AND
  • include a performance period of at least 120 days.
Covered Subcontracts Generally Are:
  • Those that flow from a covered prime contract AND
  • have a value of $3,000 or more.
Employees That Must Be Verified Using E-Verify Generally Are:
  • Newly hired employees hired during the term of the contract, regardless of whether they will be working on the (sub)contract so long as the employee will be working in the U.S. (50 states, D.C., Guam, Puerto Rico and/or the U.S. Virgin Islands);
  • All existing workers who are assigned to work on the covered (sub)contract and who are non-exempt (hourly).
How Will You Know if You Have a Covered (Sub)Contract?
  • You should find a clause in any covered prime contracts that will indicate you are required to enroll in E-Verify.
  • Covered subcontractors should find a comparable clause inserted by the prime contractor.
  • You will then have 30 days to enroll in E-Verify.

Have questions?  Call FiveL Company today. 

FMLA 2009 Notices & Poster Now Available!

The December 2008 edition of this newsletter included an article about some of the key changes in the new FMLA regulations that will take effect for covered employers on January 16, 2009.  There are a total of six new notices that covered employers must begin using as well as a new labor posting that replaces both of the current posters.  All seven forms can be downloaded for free from FiveL Company's website. 

 Spotlight! 

Following a series of staff and management training programs, "Maintaining a Respectful Workplace," Karen Haslbeck, PHR - HR Manager for Chesapeake Biological Laboratories wrote, "As the HR person, I've gotten great feedback for all levels of our organization and the training and the impact it made on them personally." Thank YOU Karen! Are you planning your 2009 Training Programs?  Contact FiveL Company for more information and a quote for services.