OCTOBER Federal & State

Updates From: September 1st – September 30th, 2012

FEDERAL ISSUES

New Employer Forms for Fair Credit Reporting

The Consumer Financial Protection Bureau has become the chief enforcer of the Fair Credit Reporting Act (FCRA) and has issued revised FCRA forms employers must start using no later than Jan. 1, 2013.

The revised forms are available in Appendixes K, M and N at the end of Title 12 of the Code of Federal Regulations, Part 1022. If the above hyperlink does not work copy and paste http://ecfr.gpoaccess.gov & search for title 12.

They include:Summary of Rights Under the FCRA.Notice to Furnishers of Information: Obligations of Furnishers Under the FCRA.Notice to Users of Consumer Reports: Obligations of Users Under the FCRA.

EEOC Onsite Investigations Multiply

Increasingly, the U.S. Equal Employment Opportunity Commission (EEOC) is coming onsite to expand investigations of single charges to identify possible class actions, according to Neshesba Kittling, an attorney with Fisher & Phillips in Chicago. As a result, she says, too many employers are handing the agency way too much information in response to its requests.

Kittling recounted one case that involved a single plaintiff’s claim of age harassment that morphed into a class-action lawsuit charging age discrimination in hiring. She claims that an EEOC investigator told her that there had been a directive to do more onsite investigations.

New Systems Will Facilitate Foreign Labor Certification Filing

Good news for employers process H-2A and H-2B foreign labor certification applications: the Employment and Training Administration announced the impending release of two new web-based tools that will increase the ease, accessibility and transparency of the filing process. The H-2B module is scheduled for release on Oct. 15, 2012. The H-2A module is scheduled for release on Dec. 10, 2012. Training webinars will be held Oct. 1 and 4, and Nov. 26 and 29.

OSHA Fine: Milwaukee Company Cited Sept 5 th for Failing to Isolate Power

Miller Compressing Co. in Milwaukee, Wis. has been cited by the Occupational Safety and Health Administration with two willful safety violations for allowing employees to perform maintenance on a shredder without first isolating the machine's energy source. OSHA conducted an inspection after receiving a complaint alleging hazards at the company's scrap processing facility. Proposed penalties total $70,000. The willful violation relate to failing to lockout the electrical power source of the 7,000-horsepower shredder and for having inadequate energy control procedures in place for maintenance and servicing.

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Does an Election Judge Work for You?

If you have 25 or more employees, any employee serving as an Election Judge in Federal, State and/or Local elections is protected from discipline for being absent on Election Day. Since the absence is protected, it cannot be used against the employee in any way. The employee needs to inform his/her employer with at least 20 days of notice. Election Judge Leave protection is limited to 10% of an employer’s workforce.

Healthcare Reform: Required Uniform Coverage Summaries

This provision of the Affordable Care Act that requires private individual and group health plans to provide a uniform summary of benefits and coverage (SBC) to all applicants and enrollees. The intent is to help consumers compare health insurance coverage options before they enroll and understand their coverage once they enroll. The provision applies to all individual and group health plans, regardless of whether they are grandfathered or not, and takes effect at a firms’ open enrollment period starting on or after September 23, 2012

Government Contractors Have Additional Obligations

If your company is a government contractor or sub-contractor, many additional regulations might apply to you.

E-Verify -- Companies with $100,000 or more in annual contracts or $3,000 or more in annual subcontracts are required to utilize the E-Verify system for all new hires and, depending on the requirements of the contract, they may need to expand e-verify utilization for all employees who are working on the contract.

Posters – Government contractors and subcontractors must post additional posters including a Disability Rights poster, the NLRB poster, the Public Contracts poster and all E-Verify posters if covered by E-Verify

EEO-1 and VETS reporting - As discussed last month, government employers with 50 or more employees and $50,000 or more in contracts must also report the demographics of their workforce to the EEOC and the OFCCP each year by filling EEO-1 and VETS reports.

Affirmative Action Plan – Companies with 50 or more employees and a government contract of $50,000 or more annually are required to develop and maintain an Affirmative Action Plan. This is a comprehensive look at your company’s employees and how the demographics of your workforce compare to the surrounding community. There are special considerations you are required to give to Veterans and Disabled individuals.

STATE ISSUES

Illinois

  $3.5 Million in Punitive Damages Awarded for Hostile Environment  

 The creation of a hostile work environment, which persisted over the course of three years and resulted in an employee experiencing over 70 incidents of harassment, merited the reinstatement of a $3.5 million punitive damages award against an employer, the 7th U.S. Circuit Court of Appeals held.

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Chrysler Group LLC employed Otto May Jr. at its plant in Belvidere, Ill. Between 2002 and 2005, May—a Cuban-born Jew—claimed to have experienced more than 70 incidents of racist and bigoted harassment, including death threats, damage to his personal property and derogatory notes and graffiti.

California

Redefining Religious Creed RightsOn Sept. 8, 2012, California Gov. Jerry Brown signed into law a bill which embodies the California Fair Employment and Housing Act. The existing law protects individuals from employment discrimination based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age or sexual orientation. The new law, which will take effect Jan. 1, 2013, expands the definition of “religious creed” to include religious dress and grooming practices as part of an individual’s religious observance or belief.

Overtime for Out of State Employees

The court concluded that three instructors who worked for Oracle Corp., a company headquartered in California, were entitled to overtime pay for any work exceeding eight hours in a workday, as required by state law, even though two of the instructors lived in Colorado and the third lived in Arizona. The three instructors primarily worked in their home states, though they also worked in California and other states.

California’s overtime laws do not distinguish between resident employees and nonresidents, and there is no genuine conflict between those laws and the overtime laws of Arizona and Colorado, California’s Supreme Court found. The Court added that, even if such a conflict exists, application of California law is required because the state’s interests would be most impaired if its policy were subordinated to that of Arizona and Colorado.

New York

New Allowed Paycheck DeductionsOn Sept. 8, 2012, Gov. Andrew Cuomo signed a law that amends New York Labor Law § 193 by expanding the scope of permissible deductions from an employee’s wages. The new law, which will take effect on Nov. 6, 2012, and is subject to renewal in three years, benefits both employers and employees by allowing employers to deduct from an employee’s wages for the employee’s preauthorized personal activities (such as gym memberships). The new law also permits employers to recapture overpayments of the employee’s wages, as well as repayments for loans or advancements the employer made to the employee.

JEFF PETRO 847-485-2202 jpetro@iiaemail.com

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