Newly Revised Form I-9

The United States Citizenship and Immigration Services (USCIS) once again released a revised Form I-9 (link) dated July 17, 2017 (lower left hand corner of the form).  As all employers should know, the Form I-9 is used to verify the identity and employment authorization of persons hired to work in the United States. Companies must begin using the new version of Form I-9 no later than September 18, 2017.

This new form replaces the form that was issued on November 14, 2016.  Like its predecessor, the revised form is also available as a “smart I-9 form” which can be completed via Adobe Acrobat.   However, if you chose to complete the I-9 via the “smart form” keep in mind that it must be printed out, hand signed, and retained in a separate file.  Those employers using an approved software for completing I-9 forms should check to assure that the revised form is uploaded no later than September 18th.   Employers should always take care to check I-9s for accuracy. In the event of an audit by the Department of Homeland Security Immigration Customs and Enforcement division (ICE), the employer would be deemed responsible for any errors.

Changes to the recently issued form include additional instructions, some technical changes and minor changes to the list of acceptable documents for verifying identity.  Overall, the changes will probably not affect the vast majority of employers.  Three changes of note are:

  • The Consular Report of Birth Abroad (Form FS-240) was added as a List C document and all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined.
  • The List C documents have been renumbered, except for the Social Security card, which remains #1 on the list.
  • The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices is changed to its new name, Immigration and Employee Rights Section

Prior to issuance of the revised Form I-9 in November 2016, significant increased fines were announced for violations discovered during an ICE audit.  Workplace audits from ICE are expected to increase significantly in the coming months.  It is prudent for companies to be proactive and conduct a self-audit of all their I-9 forms.  However, it is recommended that employers conduct self-audits only if they are well versed in the latest ICE regulations and how to make corrections that will be acceptable to ICE.  Otherwise, it is prudent to seek professional help.  When conducting mock ICE audits, PMP has consistently discovered errors that could have cost the company thousands of dollars had they been audited.  PMP is proud to be a certified IMAGE Business partner with ICE.  Our relationship and direct access to ICE personnel assures that we provide best practices to clients during both self-audits and unexpected ICE audits.

Reminder: besides having a correctly completed Form I-9 on file for every active employee hired after November 6, 1986, employers must also keep I-9s for employees who have separated from the company.  The rule for maintaining Form I-9 for these employees is: 3 years from date of hire or one year from date of termination, whichever is later.

Additionally, here is a list of 5 tips that can help limit your exposure for I-9 violations:

  1. Use the correct form!
  2. The form must be completed in accordance with strict ICE guidelines: An employee must complete Section 1 no later than by the first day of employment;  and the employer must complete Section 2,  including reviewing and certifying that they have reviewed original documents, no later than the end of the third business day after the employee’s first day of employment.
  3. DO NOT require or even suggest that an employee provide a specific document (eg. driver’s license, social security card, etc.). Employees must be permitted to choose from the list of acceptable documents the document they wish to use to verify identity. It should be noted that the Taxpayer Identification Number (also known as “TIN”) is NOT an acceptable document for I-9 purposes.
  4. All documents presented must be unexpired at the time they are presented for completion of Section 2.
  5. Work Authorization: Do not allow any employee to continue working once their work authorization has expired unless they are from a Temporary Protected Status (TPS) authorized country.  For TPS work authorization, employers can verify that the employee’s work authorization has been extended by checking the USCIS website, printing out the extension and attaching it to the employee’s I-9 Form.

If you have any questions or need assistance with Form I-9 or any other workplace matter, please contact PMP.

To view the New Form I-9, Visit the PMP Resources page by clicking here

 



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Your Website and ADA Compliance

When creating a commercial website, a company has a number of concerns and priorities, such as functionality, design, and search engine optimization. One consideration that is often overlooked, however, is whether the site will be accessible to individuals with disabilities. In view of a recent federal court decision, businesses may want to start focusing more on that factor, or risk violating the Americans with Disabilities Act.

In Gil v. Winn-Dixie Stores, Inc., a federal district court in Florida found that the supermarket chain Winn-Dixie had violated the Americans with Disabilities Act (ADA) by failing to make its website accessible to the blind. The plaintiff, a visually impaired man, had sued Winn-Dixie under the ADA because he was unable to access store coupons or refill prescriptions on the store’s website. He complained that the website was not compatible with screen-reader software often used by the visually impaired, thus denying him the full and equal enjoyment of what Winn-Dixie offered to sighted customers.

The court, following a non-jury trial, agreed. Finding that the store’s website is “heavily integrated with Winn-Dixie’s physical store locations and operates as a gateway to the physical store locations,” the court held that the ability to access digital coupons and online pharmacy services are “services, privileges, advantages, and accommodations” that the plaintiff had been denied due to the site’s incompatibility with screen-reader software. The court further found that Winn-Dixie had not shown that making the website accessible to the blind would be unduly burdensome.

Although the Winn-Dixie case did not address employment or HR-related aspects of the supermarket’s website, it is certainly conceivable that the rationale used by the court could be applied to such factors. For example, if a site has a “careers” section on which job postings are displayed, or through which candidates can directly apply for a position with the company, that section should be accessible to the disabled.  Those companies doing business with the federal government also have additional obligations as to specific wording and postings that need to be accessible to all job seekers accessing their job postings.

In light of the Winn-Dixie decision, employers would be prudent to review their websites to ensure that they are compatible with screen-reader software and thus fully accessible to individuals with disabilities.

If you have questions about website accessibility under the ADA or if you are a federal contractor and want the list of required language on your Careers page, please contact one of PMP’s experienced HR professionals.



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Effective Date of the New York State Paid Family Leave Act Looms Ever Closer– Updated Details!

As many New York employers are already aware, last year New York State enacted a comprehensive paid family leave law. The New York Paid Family Leave Act (NYPFLA) will go into effect on January 1, 2018. As of that date, employees in New York will be eligible for wage replacement during leaves of absence taken to bond with a new child, to care for a close relative with a serious health condition, or to handle certain situations arising from a family member’s call to active military duty.

While January 1, 2018 may still seem like a long way off, employers should take full advantage of the time remaining to prepare for compliance. To assist in this preparation, we have collected our responses to the most frequently asked questions we have received from clients regarding the NYPFLA.

 Which employers are covered under the law?

The NYPFLA’s requirements will apply to all employers with one or more employees in New York State.

 Which employees are eligible to take paid leave?

Any full-time employee (who must work 20 or more hours each week) who has been on the job for 26 consecutive weeks is eligible. Part-time employees become eligible for leave on their 175th day of work.

 For what purposes can an employee use paid leave?

Employees may use the leave as maternity/paternity leave – i.e., to bond with the employee’s child during the first twelve months after the child’s birth or the first twelve months after the placement of a child for adoption or foster care with the employee. The leave can also be used to participate in providing care, including physical or psychological care, for a family member of the employee due to a serious health condition of the family member. Family member is the employee’s spouse, domestic partner, child, parent, parent-in-law, grandparent, or grandchild. In addition, the leave can be used because of any qualifying exigency arising out of the fact that the family member is on active military duty (or has been notified of any impending call or order to active duty).

 How much leave is an eligible employee entitled to?

Starting January 1, 2018, employees will be permitted up to eight weeks of leave. Starting January 1, 2019, that amount will increase to 10 weeks, and as of January 1, 2020, it will increase to 12 weeks.

 Do employees receive their full salaries during a leave?

No, employees are entitled only to partial wage replacement, the amount of which will increase over a period of several years after the law’s effective date. On January 1, 2018, employees on leave will be entitled to wage replacement equal to 50 percent of their weekly wage if that is less than 50 percent of the state average weekly wage; otherwise the employee will receive 50% of that state weekly wage. That percentage will increase annually for three years as follows: 55 percent in 2019, 60 percent in 2020, and 67 percent in 2021.

UPDATE: 6/2017

On June 1, 2017, the New York State Superintendent of Financial Services published the maximum employee contribution amount.  It is 0.126% of an employee’s weekly wage up to and not to exceed the statewide average weekly wage.  

The NY State average weekly wage for 2016 is $1,305.92. 

The maximum employee contribution amount is the lesser of:

 0.126% x $1,305.92 = $1.65 per weekly paycheck, OR

.0126% x the employee’s weekly paycheck

By way of illustration:

In 2018, an employee who makes $1,000.00 per week would receive a benefit of $500.00 per week. However another employee who earns $2,000.00 per week would receive a benefit of $648.00 because this employee is capped at one-half of the New York State average weekly wage. The “average weekly wage” is set every year by the DOL.

Are employers expected to pay for this paid leave?

No. Employers will not be required to pay wage replacement to employees on leave out of their own pockets. Rather, the payments will be funded via small paycheck deductions from the wages of all New York workers.

How is the NYPFLA different from the Family and Medical Leave Act (FMLA)?

The most obvious difference is that leave under the NYPFLA is paid, while FMLA leave is unpaid. But there are numerous other differences, including the following examples:  NYPLA applies to all New York employers, even those not covered under FMLA due to having fewer than 50 employees within 75 miles of a work site. FMLA provides twelve weeks of leave, while NYPFLA will not provide twelve weeks until January 2021. FMLA leave applies to an employee’s own health condition, but NYPFLA does not. Of course, these are only a few of the many differences between the two laws. Generally speaking, employers should be aware that the two laws are not interchangeable, and what applies under one may not be applicable under the other.

UPDATE: 6/2017

What should employers do now?

Effective July 1, 2017 employers can start to take the payroll deductions, however, this is not mandatory. As of this date, the final regulations have not been issued.  As the NYPFLA will be a rider to the employer’s New York State Disability Insurance policy, you can contact your DBL carrier to determine when the first premium that includes the NYPFLA will be due in 2018. 

In the meantime, make sure your payroll service is ready to take the proper deductions from employee paychecks.

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As New York employers gear up to comply with the NYPFLA by January 1, 2018, PMP is here to answer any questions you may have about the new law. Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.

 

This article is intended for general information only and should not be construed as legal advice.



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Does Your Human Resources Department Have the Right Priorities?

We have all seen the news coverage of the sexual harassment and discrimination problems at Uber. According to reports, Uber has long suffered from a culture of pervasive sexual harassment and discrimination toward female employees. The issues first came to light publicly in February, when one former Uber employee published a blog post about the sexual harassment that she and other women experienced at the company.

Based on the information available, it appears that the problem at Uber did not stem only from the harassers themselves. Rather, the problems stemmed from a misguided Human Resources department that allowed the problems to go unchecked, despite receiving multiple reports of sexual harassment and discrimination from female employees.

According to reports, when a female employee reported harassment or discrimination to Uber’s Human Resources department, she was more likely to be chastised by HR than to have her concerns addressed. According to allegations, HR representatives told employees who reported such issues that, because the conduct complained of was the harasser’s “first offense” and the harasser was a “high performer,” he would receive a warning, nothing more. HR allegedly told one woman (the author of the February blog post referred to above) that the fact that she had made multiple complaints indicated that it was she, not the male employees she was reporting, who was the problem.

If true, these allegations suggest that Uber’s HR department believed that its highest priority was to protect “high performers” at all costs, even if that meant allowing sexual harassment to run rampant within the company. Generally, when an HR department adopts such an outlook, it comes from the top. HR staff who believe that management expects them to protect harassers and sweep complaints under the rug will, quite often, do so. Like any other employee, an HR rep wants to keep his or her job.

That is why it is imperative that management sets the tone for a company’s culture. HR must receive clear directives that harassment and discrimination are not to be tolerated, and employees must be made to feel that any issues they report will be taken seriously and dealt with appropriately. These messages must be conveyed through both the words and actions of management. HR must understand its role to be a watchdog for compliance issues and an advocate for employees, not a puppet of management.

Uber has terminated at least 20 employees in the fallout from the sexual harassment and discrimination scandal, and its CEO has resigned. Clearly, the company will be feeling the impact of the scandal for quite some time. Any company that has not taken proactive steps to assure that its HR department understands its true purpose and role should view this story as a cautionary tale.

If you have questions about establishing the right company culture, or other HR-related concerns, please do not hesitate to contact one of PMP’s experienced Human Resources directors.



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Resurgence in Recruiting Call for Review of Best Practices

Lately, PMP has observed a considerable uptick in hiring by small and large employers alike. In view of this welcome development, we thought our readers might benefit from a review of best practices in recruiting.

Best Practices for Using Social Media in Recruiting

The recruiting landscape has, like everything else in this digital age, changed significantly in recent years.  The most obvious change has been the emergence of social media as a recruiting tool. Sites and applications such as LinkedIn and Facebook have been game-changers for recruiting purposes. But the use of social media in recruiting is not without its perils. Understanding the dangers of social media-based recruiting can help employers avoid potentially costly mistakes.

Many employers, when assessing a job candidate, visit the candidate’s Facebook page. While this practice is not unlawful in itself, it can result in the employer learning information about the candidate that cannot legally be considered in the hiring process. For example, the employer may learn the candidate’s race, ethnicity, marital status, age, or religion.  Once a hiring decision-maker has such information, the employer is vulnerable to being accused of using it in the hiring decision.

One way to diminish that risk is to check social media only after a candidate has been interviewed, rather than using it as a method for conducting an initial screening of a candidate. Another way is to have someone in the company who is not involved in hiring decisions be in charge of viewing job candidates’ social media content and filtering out any information about protected characteristics (e.g., race, age, disability, etc.) before forwarding neutral information on to HR or the hiring manager. Also, an employer should never ask an applicant for his password or username information, or try to “friend” him or otherwise join his social network. A number of states have statutes prohibiting this conduct, and refraining from it is best practice in all states.

Other Best Practices in Recruiting

It should go without saying that every job posting an employer publishes should contain an EEO statement. This is language that states that the company is an equal opportunity employer and refers to its non-discriminatory hiring practices. (For federal contractors, the EEO statement must be more detailed pursuant to regulations.) Employers must bear in mind that these statements cannot be lip service; they must reflect a fundamental truth about the company.

One step in the recruiting process where a company’s EEO policy must be a guiding principle is the interview. When interviewing candidates, employers must take care not to ask questions that may elicit information regarding the candidate’s protected class status. For example, asking a candidate if she is married, has children, or plans to have children may seem like friendly small talk, but it is not permissible in a recruitment setting. Likewise, discussing a candidate’s religious affiliation (e.g., “Will you need to take Rosh Hashanah off?”) is forbidden. Employers should train their hiring team on interview skills, including what questions they can and cannot ask.  For a free copy of PMP’s article, “Interview Do’s and Don’ts” please email info@pmpHR.com.

Conclusion

Recruiting new employees is an exciting undertaking, but must be conducted with a firm understanding of discrimination law requirements. Any employer with questions about effective, risk-averse recruitment strategies should contact an HR director at PMP.



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Issuing Paystubs Electronically

Most employers – we hope – are aware that employees must be furnished with a paystub with each paycheck, listing gross wages, deductions, and net wages.  In today’s world of electronic communication and mobile devices, many employers wish to provide paystubs in electronic form only, rather than in hard copy. While that is a reasonable idea, employers who make this choice must be careful to follow the proper procedures.

First, an employee must be given the option of receiving a hard copy paystub instead of an electronic copy, if preferred. Second, any employee who chooses to receive their paystubs electronically must be provided with the means to view and print out the paystub on work premises during working hours. Third, no charge may be assessed to the employee for printing the paystub, as that would constitute an unauthorized deduction from wages.

When an employee works from home, the above requirements can be more difficult to satisfy. An employer may wish to issue paystubs to remote employees via email, but that would require the employee to print out the paystub at home, using their own paper and ink. In other words, it would result in the employee incurring costs in connection with printing the paystub, which is not permissible. For that reason, it is advisable for employers to issue paper paystubs to employees who work remotely.

If done correctly, issuing paystubs electronically can be a convenient, inexpensive, and environmentally friendly method of communicating wage information with employees. If you have questions about the proper use of electronic paystubs, please contact PMP.



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The Truth About “Unpaid Internships”

As summer approaches, many employers are gearing up for their annual summer internship programs. Offering summer internships can be a useful way for employers to “try out” potential new employees. Internship programs are, however, fraught with legal pitfalls for employers. Any employer that is considering implementing an internship program must educate itself about the requirements applicable to interns under the law.

The problems for employers begin with a misunderstanding about what an “intern” is. Many employers seem to believe that a worker is an “intern” if he or she was hired for the summer (or other specific, short-term period) and lacks relevant work experience. The classic example of this category of workers is a college student who joins a company for the duration of his or her summer break.

Many employers mistakenly believe that if they label such workers as “interns,” they need not pay them. These employers reason that, in lieu of wages, interns benefit from gaining on-the-job experience and cultivating professional contacts.

But under the Fair Labor Standards Act, many – if not most – interns are employees under the law and, as such, are entitled to be paid at least the minimum wage. In limited circumstances, it may be permissible to treat a worker as an unpaid intern, but strict criteria must be met. These criteria are:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Based on the above list, it should be clear that most “internship” programs do not meet the criteria for an unpaid internship. That does not mean employers with such programs should cancel them. It simply means the interns must be paid and, further, must be treated like other employees in all respects. For example, interns should be provided with copies of the employee handbook and be invited (or required, as applicable) to participate in any sexual harassment or other training being offered to staff.

Internships can be a mutually rewarding experience for employer and intern alike, but must be handled appropriately and within the confines of applicable labor laws. If you have questions about laws and regulations applicable to your company’s interns, please do not hesitate to contact one of our experienced HR professionals.

 



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Five Foundation Documents Your Business Can’t Live Without

Written By Anthony Acampora, Partner, SilvermanAcampora LLP, www.silvermanacampora.com

Your business is like your house.  If your house has a weak foundation, you’re not replacing the roof until you fix that problem.  If your home’s foundation is rock solid, you can change the roof, and even add a floor, whenever you like.  It’s exactly the same for your business.

Every business needs a solid foundation.  At a minimum, your business needs the following five foundation documents: (1) a shareholders’ agreement for a corporation, a partnership agreement for a partnership, or an operating agreement for a limited liability company, (2) a checklist for corporate governance, (3) a written business plan, (4) a non-disclosure and confidentiality agreement, and (5) an employee handbook.

Shareholders’, Partnership, And Operating Agreements – For those business owners who are too lazy to put their business arrangements in writing, the New York State Legislature has graciously created the Business Corporation Law, the Partnership Law, and the Limited Liability Company Law.  Now, the Legislature doesn’t know you, it doesn’t know your business partners, and it certainly doesn’t know about your specific deals, agreements, or arrangements.  And, it doesn’t care.  The best that the Legislature could do was to create a baseline designed to prevent chaos among inattentive business owners when things inevitably go wrong.  However, with those general laws came a gift for engaged, active, and attentive business owners.  Almost all of the governing laws can be changed by a written agreement among the owners to accommodate their particular wishes.  So, a shareholders’, partnership, or operating agreement is essential for every business.  Those governance documents allow the owners to decide (a) how they will govern themselves, (b) how they will share profits and losses, (c) what their rights and obligations are to the business and to each other, and (d) perhaps most importantly, control their ability to transfer their equity in the business.  Absent those foundational documents, the Legislature has made those decisions for you.  I guarantee that, when your business hits the unavoidable “bump in the road”, you won’t like its choices.

A Checklist for Corporate Governance – When was the last time that your business held an annual shareholders’ meeting, or a meeting of the board of directors?  Are there written authorizations or minutes for all of your key corporate agreements and transactions?  When was the last time that anyone in the company even looked at the stock record ledger?  Businesses can exist for decades without adhering to the best practices for corporate governance.  That is, until they face a major transaction or some legal challenge.  Failure to observe corporate formalities can cause delays in obtaining financing, interfere with a sale of the business, and, in the worst case, lead to personal liability for you, the business owner.  The best practices for corporate governance are designed to protect the company and the owners by documenting the processes by which major decisions are made and important transactions are concluded.  Those best practices insure that the owners treated the business as a separate legal entity and not simply as an extension of themselves.  A checklist prepared by an experienced corporate lawyer makes the process inexpensive and painless to follow.

A Written Business Plan – Some businesses operate under that Yogi Berra quote – “if you come to a fork in the road, take it.”  It might have worked for Yogi, but it won’t work for you.  A business plan may not be a legal document, but it’s going to be required by a bank or a buyer if you ever decide to seek financing or to sell your business. Your business plan can be one page or one hundred pages, as long as it provides clarity on your business’s opportunity and your roadmap to get there.  Without a real business plan, another Yogi quote will definitely apply to your company –  “if you don’t know where you’re going, you’ll end up someplace else.”

A Non-Disclosure and Confidentiality Agreement – Believe it or not, your business has secrets and those secrets deserve protection.  Maybe it’s a long cultivated customer list.  Maybe it’s financial records or pricing plans.  A non-disclosure agreement is the first step toward protecting that information.  It creates a confidential relationship with your contractors, business associates, and your employees that prevents them from disclosing what they saw when they got a peek at the Great and Powerful Oz behind the curtain.  A Non-Disclosure and Confidentiality Agreement – it’s simple, it’s painless, and it’s necessary.

An Employee Handbook – Speaking of employees, how do they know the rules unless you tell them?  How do you discipline someone for “stepping out of line” when you never actually pointed the line out to them?  An employee handbook is a crucial document that enables employers to set and to maintain the rules, regulations, and requirements of employment.  Without a well drafted employee handbook, and the human resources, procedures necessary to enforce ever changing labor laws, businesses are at risk from their employees and the Department of Labor.

Bonus Item – Every business with a website should have online terms of use and a privacy policy.  Those pages can limit your liability when there are errors in your own content, as well as in information contained in any hyperlinks from your website. Furthermore, like your employee handbook, your terms advise website visitors of any restrictions to their conduct on your site.  Similarly, if you gather information through your website, you are legally required to post a privacy policy that outlines how that information will or will not be used.



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Recent Court Decision Illustrates How Crucial Anti-Harassment Training Is

In a decision issued on April 27, 2017, the Second Circuit Court of Appeals interpreted the standard for establishing a “hostile work environment” claim more broadly than many HR professionals and employment lawyers would normally expect. Employers should be aware of the implications of this decision and understand how to avoid liability for hostile work environment.

Employees alleging discrimination under Title VII often claim that they were subjected to a “hostile work environment.” Generally, a hostile work environment under Title VII is created by offensive conduct, based on a person’s membership in a protected class (such as race or gender), that is severe or pervasive enough to alter the victim’s working environment. Over the years, there have been many court decisions discussing what constitutes a hostile work environment, and one often-repeated standard is that an “isolated incident” is generally not sufficient to establish a hostile work environment.

Yet the Second Circuit held in Daniel v. T&M Protection Resources LLC that the plaintiff’s supervisor’s use of a racial epithet was “by itself, sufficiently severe to constitute an actionable hostile work environment within the meaning of Title VII.” The supervisor had called the plaintiff a “f- – ing n – – – – r.”

In other words, a one-time remark by a single “bad apple” could be the basis for an employer to be held liable under Title VII for hostile work environment, if it is severe enough. This means that anti-discrimination and anti-harassment training for employees and managers is more important than ever. Having your employees and management undergo such training on a regular basis can go a long way toward reducing the likelihood that an employee will “go rogue” and engage in conduct for which the company could be held liable.

In addition, anti-discrimination and anti-harassment training can help an employer establish that it did everything possible to disseminate its harassment and discrimination policy to its staff. Other helpful steps include posting the policy on bulletin boards, including it in a well-written, regularly updated employee handbook, and distributing it during the on-boarding process (and having new hires sign an acknowledgement of receipt). Taking these steps can reduce the potential for an employer to be held liable for discrimination/harassment.

If your employees and managers have not completed training in 2016, you should make it a priority in 2017 to diminish the company’s exposure to expensive litigation.

If you have questions about this issue, or would like to inquire about updating your policy or scheduling training sessions, please contact one of PMP’s experienced HR professionals.

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Should you have any questions about this matter, please do not hesitate to contact PMP. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have experienced employment attorneys on-site to address any questions you may have regarding legal compliance.  Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.

 



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Federal Contractors – No time for Complacency

In April, President Trump proposed a budget proposal that included a possible 21 percent cut for the DOL budget. Some federal contractors may be interpreting that to mean that the OFCCP will be less active during the Trump administration, given likely budget constraints. But that is not necessarily accurate. In all likelihood, the OFCCP will continue doing what it is supposed to be doing – auditing federal contractors. A smaller budget is not going to stop the OFCCP from investigating complaints.  True, a new director for the OFCCP has not been named yet and it may have been a slow start for audits in 2017, but Secretary of Labor R. Alexander Acosta has just been sworn in, so things may gear up fast now.

It may have gone unnoticed that, in spite of not having a Director at the OFCCP since November of 2016 when Patricia Shiu stepped down, the OFCCP has continued to close cases with large settlements since their fiscal year began in October.  Here are just a few:

  • 4/25/2017 – Palantir Technologies will pay $1,659,434 in back wages and other monetary relief for allegations of hiring discrimination against Asian applicants in the hiring and selection process for engineering positions.
  • 3/27/2017 – American Ordnance of Iowa has agreed to pay two former security officers a total of $50,000 in back pay and other damages for alleged failure to accommodate them as required by Section 503 and ADA.
  • 1/1/2017 – LexisNexis Risk Solutions will pay over $1.2 million in back pay and provide additional relief to 211 employees to resolve allegations of systemic pay discrimination against women at its facilities in Alpharetta, GA and Boca Raton, FL.

So, to any federal contractors out there who are thinking they can slack off:  think again.  As a federal contractor you are still obligated to update your affirmative action plans yearly among other things.  Additionally, you should:

  • Review and analyze your data to assure that you can defend any results that are + or – 2-standard deviation;
  • Assure that you can prove that you have listed every job (with a few exceptions) with appropriate Employment Service Delivery System (ESDS) (where the job is located) along with organizations that work with Veterans, Individuals with Disabilities, Women and Minority;
  • Compensation analysis is still a very hot topic with the OFCCP and DOL (see LexisNexis case above) – when was the last time you conducted a pay equity analysis? You should also review your policies and procedures for starting salary, bonuses, overtime allocation and how location may affect pay;
  • Train your hiring team to follow good practices in the number of applicants reviewed, how applicants are rejected or moved forward in the hiring process, and how applicants are interviewed and selected for hire, promotion and for termination.

Remember that the burden is on you, the contractor, to defend your outreach, selection for interview, hire, compensation, promotion and termination.  You are non-compliant unless you can prove – through your own record-keeping – that your company’s personnel decisions were made in a non-discriminatory fashion.

As every good scout learns – “Be Prepared.”   It’s a good motto that can work for you, too!

To discss your company’s compliance matters, update your AAP or assure that your analyses are done correctly, please contact PMP’s Affirmative Action Compliance Department.  PMP is proud of its exceptional record of successfully closed OFCCP audits.   We can help with any compliance challenge you may have!

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Should you have any questions about this matter, please do not hesitate to contact PMP. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have experienced employment attorneys on-site to address any questions you may have regarding legal compliance.  Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.



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