CHAPTER 9
ROUNDUP OF ADDITIONAL LEGAL ISSUES, PROCEDURES, AND OBLIGATIONS

COMMUNICATING WITH COLLEAGUES ABOUT COMPLIANCE CONCERNS OR CONFIDENTIAL ISSUES

HR professionals should be aware of the SHRM Code of Ethics whether they are SHRM members or not and should abide by it as well as instruct their staff and unpaid interns to abide by it. The sad truth is that many HR executives do follow this code of conduct with their leadership yet are not taken seriously, are ignored, and/or are overruled regarding compliance issues.

By now you’ve seen several sample memos and can draft one of your own in a similar structure to let your supervisor and/or leadership know that this is the SHRM Code of Ethics and you will abide by it. This is a good opportunity to check in with your supervisor and ask for feedback on your job performance with regard to the SHRM Code of Conduct. It’s a very good idea to also ask him or her if he or she has any commentary on how your role in the company and your job description specifically relate or do not relate to the SHRM Code of Ethics. Ideally, you would review a job ad and/or job description against the SHRM Code of Conduct during your HR job interview before you even accept the position. However, if you find yourself already in the position or with a new boss, this is also a good time to make sure you’re both on the same page.

If you suspect that you may get a competitive or angry reaction from your boss, or he or she may dismiss the SHRM Code of Ethics, saying it isn’t the company’s policy, or directing you to not follow it, it’s a good idea to be prepared before you meet. Bring a list of all applicable city, state, and federal laws that would protect you from unlawful retaliation for raising concerns about noncompliance with relevant employment laws. Don’t try to memorize the laws instead; there is no need to add stress to the situation.

Refer to the HR Tool entitled “Sample Memo Requesting (Company)-Sponsored SHRM Membership” at the end of the chapter, on page 128.

THE LILLY LEDBETTER FAIR PAY ACT

According to the U.S. Department of Labor,

The Lilly Ledbetter Fair Pay Act amends the Civil Rights Act of 1964 and other anti-discrimination laws to clarify at which points in time discriminatory actions qualify as an “unlawful employment practice.” According to the legislation, unlawful conduct occurs when: “(1) a discriminatory compensation decision or other practice is adopted;(2) an individual becomes subject to the decision or practice; or (3) an individual is affected by application of the decision or practice, including each time compensation is paid.” The law further states that individuals may receive back pay as compensation for discrimination that occurred up to two years preceding the filing of a charge. The Fair Pay Act also allows an employee to recover back pay for up to two years preceding the filing of a discrimination claim. The Fair Pay Act significantly extends the window of time during which an employee may file a wage discrimination claim. The changes of the Fair Pay Act also apply to claims filed under the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973.¹

Being a member of SHRM will keep you updated on similar employment law changes via e-mail. (HR professionals will want to ask their leadership and legal colleagues if they would like them to forward these so all executives with legal and ethical compliance responsibilities remain sufficiently educated and informed.) The Obama administration and the current congress are expected to push through many new pieces of labor legislation, and in order to stay current on what might happen, SHRM is among the best resources to join.

HIRING VETERANS

Hiring veterans requires of an HR professional a greater vigilance of FMLA, disability, and EEO laws. There has been a large influx of disabled veterans into the workforce since the early 1990s, and this is expected to continue for several years. Adherence to FMLA laws is also required for any employee who is a caregiver for a veteran or disabled veteran. There are often recruitment efforts that focus primarily on assisting veterans in finding employment, and many corporations find this to be a meaningful and excellent source of good talent.

The unemployment rate for all veterans of the U.S. Armed Forces was 4.6 percent in 2008, according to the Bureau of Labor Statistics (BLS). The jobless rate for those who have served in the U.S. Armed Forces since September 2001 was 7.3 percent. In 2008, 22.4 million men and women in the civilian noninstitutional population, ages 18 and over, were veterans.

Approximately 30 percent of employed male veterans of Gulf War era II (defined by the BLS as September 2001 to the present) worked in management, professional, and related occupations, compared with approximately 34 percent of male nonveterans. Sales and office occupations; natural resources, construction, and maintenance occupations; and production, transportation, and material moving occupations each accounted for approximately 18 percent of employed male veterans and nonveterans. Among female veterans of Gulf War era II, 43 percent were employed in management, professional, and related occupations, and 32 percent held sales and office jobs.

Approximately 88 percent of Gulf War era I (defined as 1990 to August 2001) veterans were in the labor force in 2008, about the same as the rate for Gulf War era II veterans. The unemployment rate for Gulf War era I veterans (4 percent) was lower than the rate for Gulf War era II veterans (7.3 percent). One-half of the female veterans of Gulf War era II were in management, professional, and related occupations, compared with 40 percent of female nonveterans.²See also the sections in this chapter entitled “Uniformed Services Employment and Reemployment Rights Act,” on pages 122–123, and “Office of Federal Contract Compliance Programs,” on pages 120–121. Chapter 5’s discussion of FMLA, and Chapter 4’s discussion of ADA/ADAAA.

WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT COMPLIANCE

Compliance assistance for the Worker Adjustment and Retraining Notification Act (WARN) can be found at www.dol.gov/compliance/laws/comp-warn-regs.htm. The Employment and Training Administration of the Department of Labor is publishing a final regulation carrying out the provisions of WARN. WARN provides that, with certain exceptions, employers of 100 or more workers must give at least 60 days’ advance notice of a plant closing or mass layoff to affected workers or their representatives, to the state dislocated worker unit, and to the appropriate local government.³

AGE DISCRIMINATION ACT COMPLIANCE

According to the Job Accommodation Network, “The Age Discrimination Act (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. The ADEA permits employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older” (but younger than the older worker). “It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor companies, as well as to the federal government.”⁴

COMPREHENSIVE OMNIBUS BUDGET RECONCILIATION ACT COMPLIANCE

According to the U.S. Department of Labor’s Job Accommodation Network,

the Supreme Court has ruled that an employer cannot cancel a former employee’s medical coverage under the Comprehensive Omnibus Budget Reconciliation Act (COBRA), even if the former worker is covered under a spouse’s health plan when separated from employment. As a result of the holding, a former employee may choose to continue health-care coverage provided by his or her previous employer if coverage under the spouse’s health plan was in effect before the decision to continue health-care coverage under COBRA is made.

COBRA requires employers to provide a “qualified beneficiary” (for example, an employee who was fired) with continuation of health-care coverage as good as the coverage the employee received while employed. The continuation of coverage can last up to 18 months; the former employee pays the health-care insurance premiums.

The statutory language of COBRA clearly indicates that a former employee ceases to be eligible for coverage under the Act if the employee becomes covered under a different plan after the election of COBRA benefits. Section 1162(2)(D)(i) states that an employee’s COBRA insurance may be canceled on “the date on which the qualified beneficiary first becomes, after the date of the election [to continue coverage from a former employer], covered under any other group health plan which does not contain any exclusion or limitation with respect to any pre-existing conditions of such beneficiary . . .” However, the language does not directly address whether a former employee who was covered by another plan before electing to continue coverage from the former employer (that is, while the former employee was still employed) is ineligible for COBRA benefits.⁵

OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS

The U.S. Department of Labor’s Web site states that

the Office of Federal Contract Compliance Programs (OFCCP) administers and enforces three legal authorities that require equal employment opportunity: Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; and the Rehabilitation Act of 1973. Taken together, these laws ban discrimination and require Federal contractors and subcontractors to take affirmative action to ensure that all individuals have an equal opportunity for employment, without regard to race, color, religion, sex, national origin, disability or status as a Vietnam era or special disabled veteran. This order, signed by President Lyndon B. Johnson in 1965, prohibits discrimination in hiring or employment decisions on the basis of race, color, gender, religion, and national origin. It applies to all nonexempt government contractors and subcontractors and federally assisted construction contracts and subcontracts in excess of $10,000.

Under the Executive Order, contractors and subcontractors with a federal contract of $50,000 or more, and 50 or more employees are required to develop a written affirmative action program that is designed to ensure equal employment opportunity, and sets forth specific and action-oriented programs to which a contractor commits itself to apply every good faith effort.

Section 503 of the Rehabilitation Act of 1973, as amended, prohibits discrimination and requires affirmative action in all personnel practices for qualified individuals with disabilities. It applies to all firms that have a nonexempt Government contract or subcontract in excess of $10,000. An affirmative action program is required.

The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) prohibits discrimination and requires affirmative action in all personnel practices for all veterans who served on active duty in the U.S. military, ground, naval, or air service who are special disabled veterans, Vietnam Era veterans, recently separated veterans, or veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized. It applies to all firms that have a nonexempt Government contract or subcontract of $25,000 or more. An affirmative action program is required.

In carrying out its responsibilities, the OFCCP uses the following enforcement procedures:

• Offers technical assistance to federal contractors and subcontractors to help them understand the regulatory requirements and review process.

• Conducts compliance evaluations and complaint investigations of federal contractors and subcontractors personnel policies and procedures.

• Obtains Conciliation Agreements from contractors and subcontractors who are in violation of regulatory requirements.

• Monitors contractors and subcontractors progress in fulfilling the terms of their agreements through periodic compliance reports.

• Forms linkage agreements between contractors and Labor Department job training programs to help employers identify and recruit qualified workers.

• Recommends enforcement actions to the Solicitor of Labor.

• The ultimate sanction for violations is debarment—the loss of a company’s federal contracts. Other forms of relief to victims of discrimination may also be available, including back pay for lost wages.

The OFCCP has close working relationships with other Departmental agencies, such as: the Department of Justice, the Equal Employment Opportunity Commission and the DOL, the Office of the Solicitor, which advises on ethical, legal, and enforcement issues; the Women’s Bureau, which emphasizes the needs of working women; the Bureau of Apprenticeship and Training, which establishes policies to promote equal opportunities in the recruitment and selection of apprentices; and the Employment and Training Administration, which administers Labor Department job training programs for current workforce needs.

OFCCP has a national network of six Regional Offices, each with District and Area Offices in Major Metropolitan Centers, and focuses its resources on finding and resolving systemic discrimination. The agency has adopted this strategy to: (1) prioritize enforcement resources by focusing on the worst offenders; (2) encourage employers to engage in self audits of their employment practices; and (3) achieve maximum leverage of resources to protect the greatest number of workers from discrimination.⁶

UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT

According to the U.S. Department of Labor’s Web site, Uniformed Services Employment and Reemployment Rights Act (USERRA)

was signed on October 13, 1994, and applies to persons who perform duty, voluntarily or involuntarily, in the “uniformed services,” which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. In addition, under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work (and authorized training for such work) is considered “service in the uniformed services.”

Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty. USERRA covers nearly all employees, including part-time and probationary employees and applies to virtually all U.S. employers, regardless of size. The pre-service employer must reemploy service members returning from a period of service in the uniformed services if those service members meet five criteria:

• The person must have held a civilian job;

• The person must have given notice to the employer that he or she was leaving the job for service in the uniformed services, unless giving notice was precluded by military necessity or otherwise impossible or unreasonable;

• The cumulative period of service must not have exceeded five years;

• The person must not have been released from service under dishonorable or other punitive conditions; and

• The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment.

USERRA establishes a five-year cumulative total on military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills, and annually scheduled active duty for training.

Employers are required to provide to persons entitled to the rights and benefits under USERRA a notice of the rights, benefits, and obligations of such persons and such employers under USERRA. USERRA also allows an employee to complete an initial period of active duty that exceeds five years (e.g., enlistees in the Navy’s nuclear power program are required to serve six years).

Under USERRA, restoration rights are based on the duration of military service rather than the type of military duty performed (e.g., active duty for training or inactive duty), except for fitness-for-service examinations. The time limits for returning to work are as follows:

• Less than 31 days service. By the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight-hour rest period. If this is impossible or unreasonable, then as soon as possible;

• 31 to 180 days. The employee must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible;

• 181 days or more. The employee must apply for reemployment no later than 90 days after completion of military service;

• Service-connected injury or illness. Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing.

USERRA also guarantees pension plan benefits that accrued during military service, regardless of whether the plan is a defined benefit plan or a defined contribution plan. USERRA provides that service members activated for duty on or after December 10, 2004 may elect to extend their employer-sponsored health coverage for up to 24 months. Service members activated prior to 12/10/04 could elect to extend coverage for up to 18 months. Employers may require these individuals to pay up to 102 percent of total premiums for that elective coverage. In addition, USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or an intent to serve.

The Veterans’ Employment and Training Service (VETS) enforces USERRA. However, the law also allows an employee to enforce his or her rights by filing a court action directly, without filing a complaint with VETS.Compliance assistance information is available on the VETS Web site: http://www.dol.gov/vets/. Specific compliance assistance materials available include: the DOL USERRA regulations (20 CFR Part 1002), which implement the law for non-Federal employers; a fact sheet (OASVET 97-3) about USERRA; the notice/poster to employees of their rights, benefits and obligations under USERRA; and a non-technical USERRA Guide that contains general information about the law. Copies of VETS’ publications, or answers to questions about USERRA, may also be obtained from your local VETS office.

Another compliance assistance resource, the elaws USERRA Advisor, helps veterans understand employee eligibility and job entitlements, employer obligations, benefits, and remedies under the Act. For additional compliance assistance, contact the Department’s Toll-Free Help Line at 1-866-4-USA-DOL. A court may order an employer to compensate a prevailing claimant for lost wages or benefits. USERRA allows for liquidated damages for “willful” violations, does not preempt state laws providing greater or additional rights, but it does preempt state laws providing lesser rights or imposing additional eligibility criteria.⁷

THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974

The U.S. Department of Labor defines The Employee Retirement Income Security Act (ERISA) as

a federal law that sets minimum standards for pension plans in private industry. ERISA does not require any employer to establish a pension plan; it only requires that those who establish plans must meet certain minimum standards. The law generally does not specify how much money a participant must be paid as a benefit. ERISA requires plans to regularly provide participants with information about the plan including information about plan features and funding; sets minimum standards for participation, vesting, benefit accrual and funding; requires accountability of plan fiduciaries; and gives participants the right to sue for benefits and breaches of fiduciary duty.

ERISA also guarantees payment of certain benefits through the Pension Benefit Guaranty Company, a federally chartered company, if a defined plan is terminated. The Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) enforces ERISA . The EBSA Compliance Assistance Portal assists employers and employee benefit plan officials in understanding and complying with the requirements of ERISA as it applies to the administration of employee pension and welfare benefit plans.

Under ERISA, COBRA Continuation Coverage and The American Recovery and Reinvestment Act of 2009 (ARRA) provide for premium reductions and additional election opportunities for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The TAA Health Coverage Improvement Act of 2009, enacted as part of ARRA, also made changes with regard to COBRA continuation coverage.

The Employment Law Guide: Employee Benefit Plans provides a summary of the requirements for most private sector employee benefit plans under ERISA. The Cash Balance Pension Plans Guide provides general information on cash balance pension plans. The Division of Pensions Through Qualified Domestic Relations Orders (QDROs) are generally qualified domestic relations orders that create or recognize the existence of an alternate payee’s right to receive, or assign to an alternate payee the right to receive, all or a portion of benefits payable with respect to a participant under a pension plan. The EBSA’s Orphan Plan Project describes an enforcement project to locate pension plans, particularly 401(k) plans, which have been abandoned by fiduciaries through death, neglect, bankruptcy, or incarceration and to determine if a fiduciary could be located. Another guide, Your Employer’s Bankruptcy: How Will It Affect Your Employee Benefits? provides information on bankruptcy’s effect on pension plans and group health plans. FEAST is a computerized processing system that simplifies and expedites the receipt and processing of the Form 5500 and Form 5500-EZ.

E-TOOLS for ERISA are found at the “elaws Health Benefits Advisor,” which helps workers and their families better understand employer and employee company (such as a union) provide group health benefits and the laws that govern them, especially when they experience changes in their life and work situations such as marriage, childbirth, job loss, or retirement. It also assists employers in understanding their responsibilities under the applicable laws. The “elaws Small Business Retirement Savings Advisor” provides information to help small business owners understand their retirement savings options and determine which program is most appropriate for their needs. Compliance assistance for employers regarding reporting and filing information can be obtained from EBSA.

ERISA sets uniform minimum standards to ensure that employee benefit plans are established and maintained in a fair and financially sound manner. In addition, employers have an obligation to provide promised benefits and satisfy ERISA’s requirements for managing and administering private pension and welfare plans. The EBSA can be reached at 1-866-444-EBSA (3272) or TTY: 1-877-889-5627. Pursuant to the U.S. Department of Labor’s Confidentiality Protocol for Compliance Assistance Inquiries, information provided by a phone caller will be kept confidential within the bounds of the law. Compliance assistance inquiries won’t trigger an inspection, audit, investigation, etc.⁸

THE IMMIGRATION AND NATIONALITY ACT

The U.S. Department of Labor explains that

the Immigration and Nationality Act (INA) sets forth the conditions for the temporary and permanent employment of aliens in the United States and includes provisions that address employment eligibility and employment verification. These provisions apply to all employers. The Employment Law Guide: Authorized Workers describes what employers must do to verify the identity and employment eligibility of anyone to be hired, and the protections afforded to employees from discrimination in hiring or discharge on the basis of national origin and citizenship status. The Employment Law Guide: Crewmembers (D-1 Visas) describes the requirements of vessels/employers seeking to employ their nonimmigrant aliens as crewmembers to perform longshore work in U.S. ports under D-1 Visas. The Employment Law Guide: Workers in Professional and Specialty Occupations (H-1B Visas) describes the requirements on the part of employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models using the H-1B and H-1B1 nonimmigrant visa classification. The Employment Law Guide: Temporary Agricultural Workers (H-2A Visas) describes the procedures for obtaining a labor certification and the contractual obligations of employers seeking to hire temporary agricultural workers under H-2A Visas. The Employment Law Guide: Temporary Nonagricultural Workers (H-2B Visas) describes the requirements on the part of employers seeking to obtain temporary nonagricultural labor certifications in order to import temporary nonagricultural workers to work in temporary jobs in the United States under H-2B visas. The Employment Law Guide: Permanent Employment of Workers Based on Immigration describes the requirements on the part of employers seeking to hire foreign workers immigrating to the United States for the purpose of employment, including the application process for employers to obtain a permanent alien employment certification.⁹

INA AVAILABLE FACT SHEETS

• The Publication of Final H-1B (Professional and Specialty Occupation Visas)Regulations

• Changes made by the H-1B Visa Reform Act of 2004

• H-2A (Temporary Agricultural Worker Visas)

• Application of U.S. Labor Laws to Immigrant Workers (In Korean—PDF) (En Español)

• Fair Labor Standards Act Application to Foreign Commercial Vehicle Operators (En Español)

RECORDKEEPING: DOCUMENTS AND FORMS

The U.S. Department of Labor’s Web site has

links to the forms needed to obtain foreign labor certification under various programs, including the Application for H-1B and H-1B1 Non-immigrants (form ETA-9035), the Application for Permanent Employment Certification (form ETA-9089), the Application for Alien Employment Certification (form ETA-750A), and Part B of this application: Statement of Qualifications of the Alien (form ETA-750B), and the Application for Alien Employment Certification for Agricultural Services (form ETA-790). Please note that these forms are in PDF format and require the Adobe Acrobat Reader.

H-2A Visa Program. Employers certified for H-2A contracts must keep records of the hours each worker actually works. In addition, the employer must retain a record of time “offered” to the worker but which the worker “refused” to work. Each worker must receive a wage statement showing hours of work, hours refused, pay for each type of crop, the basis of pay (i.e., whether the worker is being paid by the hour, by the piece, “task” pay, etc.). The wage statement must indicate total earnings for the pay period and all deductions from wages (along with a statement as to why deductions were made). See 20 CFR 655.102(b)(7) for further information on recordkeeping requirements under the H-2A visa program.

H-1B and H-1B1 Visa Program. Employers using the H-1B or H-1B1 visa classifications to hire nonimmigrant foreign workers in specialty (professional) occupations are required to maintain documentation to meet their burden of proof with respect to the validity of the statements made in their Labor Condition Application (LCA) and the accuracy of the information provided. See 20 CFR 655.760 for regulations for employers of H-1B and H-1B1 classified specialty/professional nonimmigrant foreign workers.

H-2B Visa Program. Employers of temporary nonagricultural workers under the H-2B visa program are not subject to any post entry (H-2B) program specific recordkeeping/posting/notice requirements; however, the recordkeeping/posting/notice requirements of any other laws applicable from DOL to the employment would apply.¹⁰

APPLICABLE INA LAWS AND REGULATIONS

The U.S. Department of Labor’s Web site explains

20 CFR Part 655. Regulations implementing the INA regarding the temporary employment of aliens in the United States. Interim Final Rule, 20 CFR Part 655 Subparts H and I (PDF): Interim Final Rule implementing DOL’s responsibilities regarding H-1B1 visas for professionals from Chile and Singapore.

29 CFR Part 501. Regulations implementing the INA regarding the enforcement of contractual obligations applicable to the temporary employment of foreign and other workers employed in agriculture.¹¹

HR TOOL
SAMPLE MEMO REQUESTING (COMPANY)-SPONSORED SHRM MEMBERSHIP

On letterhead, in interoffice memo format, or via e-mail

To: Your Supervisor

(Include any others on this list to whom this memo should be addressed.)

From: Your Name

Date:

Re.: Request for company-sponsored SHRM membership for HR personnel

I would like (Company) to purchase a SHRM annual membership in my name so that I am able to remain as educated as possible regarding any HR issue and remain informed about changing legislation, high-profile case studies in the news, important research, and high-quality educational opportunities.

SHRM’s annual membership is currently $160.00 per year. SHRM’s more than 250,000 members come from all over the world and work in all disciplines of HR. I will have the ability to communicate with them and learn from them.

We share a collective responsibility to ensure (Company)’s compliance with all relevant employment laws, which frequently change. SHRM will help keep me and us credibly informed of any changes. I know we share a commitment to prevent liability exposure for (Company) as well as personal liability exposure.

My membership in SHRM will provide free access to information, white papers, case-law information, and research capabilities along with toolkits for how to best handle every HR issue. I recommend that we use these resources in the future to ensure legally compliant decision-making processes related to any matter for which we require technical assistance.

I know we share a strong commitment to consistent application of all (Company)’s policies as well as compliance with all relevant city, state, and federal laws.

I also wish to include for you the SHRM Code of Ethics, which I endeavor to follow in my role as (title) at (Company). Please let me know if you would like to discuss these as they relate to my role at (Company).

If you would like to review the Web site, the address is: http://www.shrm.org/

Thank you very much.