New W-2 and W-3 forms

There's some new tax forms in town, and we have HIRE to thank for it.

On March 18, President Obama signed the Hiring Incentives to Restore Employment (HIRE) Act into law. HIRE provides tax incentives for businesses that hire unemployed workers.

The Internal Revenue Service has now issued new W-2 and W-3 forms and instructions based on the new HIRE provisions.

Box 12 on the W-2 now has a new code for companies to record the amount of compensation covered by the payroll tax exemptions under HIRE (Code CC). The total of compensation reported under Code CC is then recorded on the revised W-3 in the new Box 12b. The "total deferred compensation" previously reported Box 12 is now entered in Box 12a.

Hiring Incentives to Restore Employment (HIRE) Act Employee Affidavit

On March 18, President Obama signed the Hiring Incentives to Restore Employment (HIRE) Act into law. HIRE provides tax incentives for businesses that hire unemployed workers.

On March 31, the IRS issued a draft Form W-11 HIRE Act affidavit used to certify employee eligibility for the program. The IRS has now issued a final version of the W-11, available here and a new set of FAQs, available here.

Instructions to the Employer

Section references are to the Internal Revenue Code.

Purpose of Form

Use Form W-11 to confirm that an employee is a qualified employee under the HIRE Act. You can use another similar statement if it contains the same information as on the form and the employee signs it under penalties of perjury.

Only employees who meet all the requirements of a qualified employee may complete this affidavit or similar statement. You cannot claim the HIRE Act benefits, including the payroll tax exemption or the new hire retention credit, unless the employee completes and signs this affidavit or similar statement under penalties of perjury and is otherwise a qualified employee.

A "qualified employee" is an employee who:

• begins employment with you after February 3, 2010, and before January 1, 2011;
  
  
• certifies by signed affidavit, or similar statement under penalties of perjury, that he or she has not been employed for more than 40 hours during the 60-day period ending on the date the employee begins employment with you;
  
  
• is not employed by you to replace another employee unless the other employee separated from employment voluntarily or for cause (including downsizing); and
  
  
• is not related to you. An employee is related to you if he or she is your child or a descendent of your child, your sibling or stepsibling, your parent or an ancestor of your parent, your stepparent, your niece or nephew, your aunt or uncle, or your in-law. An employee also is related to you if he or she is related to anyone who owns more than 50% of your outstanding stock or capital and profits interest or is your dependent or a dependent of anyone who owns more than 50% of your outstanding stock or capital and profits interest.
  

If you are an estate or trust, see section 51(i)(1) and section 152(d)(2) for more details.

The Service has not yet addressed the issue of electronic signatures regarding this form; however since it is considered an act of perjury to make a false claim on the new hire affidavit, it would lead one to think they are NOT likely to accept electronic signatures.

President Obama Signs H.R. 4851, the Continuing Extension Act of 2010

Late on Thursday, April 15th, President Obama signed H.R. 4851, the Continuing Extension Act of 2010. Final passage in the House (289-112) and Senate (59-38) guaranteed several extensions to government programs, including Consolidated Omnibus Budget Reconciliation Act (COBRA) health care insurance benefits and emergency unemployment benefits.

The bill provides:

An extension on the period that individuals may file applications for Federal Emergency Unemployment Compensation (EUC) from April 5, 2010 to June 2, 2010, and the period which individuals may claim and be paid EUC from September 4, 2010 to November 6, 2010.

An extension on the period that individuals may qualify for the Federal Additional Compensation (FAC), (the extra $25 per weekly benefit amount on state and federal unemployment compensation) will be extended for the same weeks as the EUC extension.

An extension of the period that the federal government will provide 100% reimbursement for weeks of regular federal extended benefit payments from April 5, 2010 to June 2, 2010, with the state option to continue the benefit extension period from September 4, 2010 to November 6, 2010.

An extension on the eligibility for the COBRA health insurance 65% subsidy for people who have lost their jobs through May 31, 2010. The bill also provides transition relief for individuals who lost their jobs between March 31, 2010, and the date of enactment.

EUC and FAC payments will be paid for from general revenue, and regular employment benefits will be draw from the Federal Emergency Unemployment Compensation Account that is funded with FUTA taxes paid by employers.

At this time, it is unclear if Congress will consider a longer extension of unemployment and COBRA benefits. The current legislative proposal, H.R. 4213, would extend benefits through the end of 2010.

Labor Department Toughens Enforcement on Internships

In recent days, there have been several news reports about the legality of unpaid internships and the Labor Department’s plan to crack down on employers’ who use unpaid interns.

For example, this week The New York Times reported that Nancy J. Leppink, the Acting Head of the Department of Labor’s Wage and Hour Division, confirmed that the agency is “cracking down” on unpaid internships.

According to Ms. Leppink, “If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law.”


According to the Department of Labor (DOL), there are six criteria that employers must use to determine whether an intern should be paid. Other than what has appeared in news reports, there is little information on how the agency intends to increase enforcement on unpaid internships


The U.S. Department of Labor’s Wage and Hour Division (WHD) has developed the six
factors below to evaluate whether a worker is a trainee or an employee for purposes of
the FLSA:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;
   
2. The training is for the benefit of the trainees;
   
3. The trainees do not displace regular employees, but work under their close observation;
   
4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;
   
5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and
   
6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

If all of the factors listed above are met, then the worker is a “trainee”, an employment relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime provisions do not apply to the worker. Because the FLSA’s definition of “employee” is broad, the excluded category of “trainee” is necessarily quite narrow. Moreover, the fact that an employer labels a worker as a trainee and the worker’s activities as training and/or a state unemployment compensation program develops what it calls a training program and describes the unemployed workers who participate as trainees does not make the worker a trainee for purposes of the FLSA unless the six factors are met. Some of the six factors are discussed in more detail below.

Training Similar to Vocational School/The Primary Beneficiary of the Activity

In general, the more a training program is centered around a classroom or academy as opposed to the employer’s actual operations, the more likely the activity is training. Also, the more the training is providing the workers with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the worker is a trainee. On the other hand, if the workers are engaged in the primary operations of the employer and are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits is unlikely to make them trainees given the benefits received by the employer.

Displacement and Supervision Issues

Employers with bona fide training programs typically do not utilize trainees as a substitute for regular workers. If the employer uses the workers as substitutes for regular workers, it is more likely that the workers are employees as opposed to trainees. As well, if the employer would have needed to hire additional employees or require overtime had the workers not performed the work, then the workers are likely employees. Conversely, if the employer is providing job shadowing opportunities where the worker learns certain functions under the close and constant supervision of regular employees, but performs no or minimal work, this type of activity is more likely to be a bona fide training program; however, if the worker receives the same level of supervision as employees, this would suggest an employment, rather than a training, relationship.

No Job Entitlement/No Entitlement to Wages

Typically, before the work-based training begins, both the employer and the worker agree that the worker is not entitled to a job at the conclusion of the training period or wages for the time spent in training. The parties’ expectations regarding the compensation and job opportunities are relevant but not determinative. Even when such an agreement exists, hiring workers who finish the training program is considered in determining whether an employment relationship exists, and frequently hiring such workers suggests that the workers are not trainees. Finally, if the worker is placed with the employer for a trial period with the hope that the worker will then be hired on a permanent basis (even if the worker is not automatically entitled to a job at the end of the period), then the worker is not likely to be a trainee during the trial period.

Examples:

1. The worker is placed in a classroom setting maintained by an employer to learn to be an electronic technician with no guarantee of future employment with the employer. After the training period, the employer hires the worker (even though the worker was not entitled to a job and most training participants do not receive offers of employment). Because the employer did not benefit from the worker’s activities during the training period and the training is very similar to the training that is provided in a vocational school, the training program is likely bona fide, and the worker is not an employee under the FLSA.
   
2. A worker who participates in a program at a retail store or restaurant and who assists customers or operates a cash register with little supervision may be an employee because the employer derives tangible benefit (i.e., productive work) from the worker’s activities. Also, a worker who performs such work may result in the employer’s not hiring an employee whom it would otherwise hire, or result in a regular employee working fewer hours than he or she would otherwise work–-both of which suggest an employment relationship.
   

ADVISORY: TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 12-09 (PDF file)

Is Your Employee Handbook Too Wordy?

New employees commonly are asked to sign an acknowledgement form saying that they “have read and understand” their company’s employee handbook. But such documents often contain a level of detail that can overwhelm a new hire.

This issue was recently put before members of the Society for Human Resource Management’s Employee Relations Special Expertise Panel and was presented to HR professionals on the business networking site LinkedIn. The challenge: Write an employee handbook using 25 words or less.

The responses, though varied, had a number of common themes that hearken to early childhood guidance, such as: Work hard and be nice to people.

For example, Amanda Haddaway, director of human resources and marketing for Folcomer Equipment Corp. in Frederick, Md., said: “Be a responsible employee by being present, working hard, using common sense and acting in a legal and effective manner. When in doubt, ask manager.”

And Jenilee Deal, an HR associate at the California investment firm Bailard, Inc., said: “Use your best judgment and exceed the highest standards. Foster enthusiasm, reliability, communication, positivity and honesty.”

Panel member Chana C. Anderson, SPHR-CA, CCP, director of HR for the Jewish Home San Francisco, used a couple of extra words to emphasize the consequences employees face when they don’t follow the rules: “Do your best, be honest, and treat each other and the company with respect. Do this and we’ll all get along fine! Don’t and it’ll be time to find yourself another job.”

Fellow panel member, Vicki K. Kuhn, PHR-CA, HR manager for Fugate Enterprises, a company that operates fast food restaurants such as Pizza Hut and Taco Bell, customized her mini handbook for restaurant employees: “We’re here to run good restaurants so be clean, polite and don’t steal. Practice the golden rule and common sense and don’t touch others.”

Some who chimed in to the LinkedIn discussion emphasized the importance of personal responsibility and included advice such as “do the right thing” and “do your best to enjoy life.”
Bob Mosby, strategic account manager at the staffing services company Johnson Service Group Inc., included a list of priorities in his submission: “You are president and CEO of your work performance,” he told SHRM Online. “Success formula: customers first, company and colleagues second, self third. Always do your best for others.”

And Elliot Echlov, an information technology professional for a South Carolina-based health care organization, provided an employee’s take on an ideal 25-word handbook: “Be honest. Be ethical. Take ownership. Take responsibility. Share knowledge. Think differently. Work together. Be professional.”

Keep It Simple

Twenty-five words might not be enough to communicate everything an organization needs its employees to know, but HR professionals said simple is good.

Phyllis Hartman, SPHR, president of the HR firm PGHR Consulting, Inc., in Pittsburgh, said a handbook should be only the length necessary to communicate expectations clearly. “Detailed policies can be developed and provided to those who want or need them,” she told SHRM Online. “In today's world of rapid, constant change, having too much in writing can defeat employees and companies!”

Dawn M. Adams, PHR, owner of the Hartland, Wis.-based consulting firm HResults, and member of SHRM’s employee relations panel, said that employee handbooks should be “strong enough that they set the rules, yet broad enough that they don't handcuff managers to one set procedure.”

HR manager and SHRM panel member David J. Koesters, SPHR, agreed. “While it’s important to do things right, it is more important for a company to do the right thing based upon the circumstances,” he said. “The handbook is a guideline that allows a manager flexibility to do the right thing in a given situation based upon the facts.”

Fellow panel member Darlene J. Porter, SPHR, senior manager, talent management/employee relations, for AFLAC in Columbus, Ga., added that policies and handbooks should be “as simple as the company culture and employee mind-set will allow.”

Her mini handbook gives employees the answer to the “what’s in it for me?” question: “Work is a partnership. If you do your job to your best ability the company can share the rewards of mutual success with you.”

“Extensive HR policies and procedures only allow individuals to abdicate their personal responsibility and deflect people being fully human at work,” said Patti Digh, a management consultant, speaker and author from Asheville, N.C. Her message to employees? “Be kinder than necessary. Speak truth to power. Create your best job. Respect the company’s assets. Be your own boss. Learn from your mistakes.”

Why Handbooks Rarely Are Simple

Although the idea of a 25-word handbook might be appealing to employers—and employees— employment laws often prescribe requirements that make such brevity a challenge.

Every policy in a handbook can have legal implications, Devora L. Lindeman, senior counsel for the management-side law firm Greenwald Doherty LLP in New York, told SHRM Online. “Even with appropriate ‘the handbook is not a contract’ language, policies should not be worded as guarantees, and no benefits should be provided without employer flexibility to change them.”

In the United States some policies have more specific legal implications than others, such as “discrimination and harassment policies, Family and Medical Leave Act and other leave policies, computer and phone use policies (which should include an express disclaimer of privacy and indicator of potential monitoring) and social media/blogging policies,” she said.

Employment-at-will statements “are key, keeping in mind that states such as California differ as to requirements,” Lindeman said. “Depending on state law, certain wage and hour policies, as well as policies regarding benefits such as vacation and sick leave, are required to be in writing.”

Kuhn said a certain level of detail is essential. “Because I want to keep our unemployment rates as low as possible as a part of payroll costs, sometimes I have to be very, very picky—to the point of insanity—[about] what is in the handbook.”

Anderson acknowledged that there are some policies that require extensive detail but suggested a compromise approach: “Keep the majority of it simple [and] easy for employees to understand, and allow organizations to have flexibility/discretion in most of the policies.”

“Handbooks are both a sword and a shield for employers – but only if properly drafted,” Lindeman said. “Any handbook should be reviewed by legal counsel familiar with the local laws to ensure that the handbook provides the employer with the protections they need.”

Yet if she could draft a 25-word handbook, Lindeman said, it might read something like this: “Act like you want to be here. Do your job well to be rewarded. Fail, and be fired. Play nice. Do no harm.”

Getting Employees to Sign Off

Regardless of whether a particular organization’s employee handbook is detailed or succinct, it will generally be accompanied by an acknowledgement form that employees—new and old—are expected to sign. In addition to noting that the handbook is not a contract, is subject to change and provides no guarantee of continuing employment, most forms ask employees to affirm that they “have read and understand” the contents of the handbook.

But depending on when the handbook and form are given out, an employee might not have had the opportunity to read it. For that or other reasons, the employee might be reluctant to sign the form.

That’s why Lindeman said that employee handbook acknowledgement forms should require employees to confirm that the handbook has been received, that they will read the handbook and that they know that they are responsible for understanding and complying with the contents. “This should be distributed within an employee's first few days of employment,” she said, after providing the employee with an opportunity to read through the handbook.

Porter agreed and said that in her organization the handbook acknowledgement form is used to acknowledge that the employee received the document and that the policies and procedures apply whether an employee signs the form or not.

The form Anderson’s organization uses takes a similar approach and says, in part, “I understand and agree that it is my responsibility to read and familiarize myself with the provisions of the employee handbook and to abide by the rules, policies and standards set forth in the employee handbook.”

According to Adams, employees should have a reasonable time period in which to read the handbook. Her organization’s form says “I understand that it is my responsibility to read its contents within seven calendar days of my hire date and understand its contents. If I have any questions or concerns with its contents or other issues related to my employment, it is my responsibility to raise them.”

But some employees, whether new to the organization or not, refuse to sign such a form.

“If an employee refuses to sign the acknowledgement of receipt of the company policies, especially if it's a new employee, this action is an indication that the employee sees him/herself as above the company's laws,” Frances O'Malley-Saxton of FOS Consulting LLC in Lake Orion, Mich. told SHRM Online. “Even if you have the signatures of witnesses of this signature refusal, by allowing him or her not to sign you're sending the message that the employee is in a stronger position to manage you; not the other way around.”

“I have never had an employee refuse to sign,” Anderson noted. But if she did, she said, she would respond by reminding the employee that they are still responsible for following the policies in the handbook and would make a note in the employee’s file that the employee refused to sign but was educated about the policies.

Kuhn said her employees must acknowledge that they have read the handbook and agree to abide by it: “If they refuse to sign the acknowledgement, then they don’t work for us.”

by Rebecca R. Hastings, SPHR, an online editor/manager for SHRM

http://www.shrm.org/hrdisciplines/employeerelations/articles/Pages/HandbookTooWordy.aspx?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+shrm/news/hr+(SHRM+Online:+HR+News)&utm_content=Google+Reader

Health Care Reform Law

President Obama signed into law H.R. 3590, the Patient Protection and Affordable Care Act. This sweeping reform law includes many provisions that will impact both employers and employees.

• Employer Requirement – Penalties would be assessed on employers with 50 or more employees who fail to offer coverage to employees. The penalty would be assessed if even one employee receives a subsidy to purchase coverage through a health insurance exchange. Employers would also incur penalties if the coverage they offer is considered “unaffordable” to the employee or if the health plan has an actuarial value of less than 60 percent or pays less than 60 percent of covered health care expenses.
  
• Individual Requirement – The new law requires individuals to purchase health insurance coverage or pay a tax penalty beginning in 2014. The penalty, which is phased in, starts at $95 or 0.5% of income per individual in 2014 and increases to $750 or 2% of income in 2016. The penalties for families would be capped at $2,250. Religious and hardship exemptions are available.
  
• Excise Tax on High - Value Health Plans (“Cadillac” tax) – Employers offering health plans that exceed a certain cost (the total employee and employer cost) would be subject to an excise tax on the amount above that value. For individual coverage, the threshold would be $8,500; for family coverage, the threshold would be $23,000. These thresholds would be indexed at Consumer Price Index plus one percentage point. Certain high-risk provisions would have a higher cost threshold.
  
• Insurance Market Reforms – The new law requires insurance plans to provide coverage to any individual who requests insurance. It also includes a prohibition on pre-existing condition restrictions in the individual and small group health care market. Health insurance premiums would be allowed to vary based only on tobacco use, age, family composition, and geographic location. Large employers that purchase coverage through a health care exchange would be eligible for the above insurance protections. Both self-insured and fully-insured plans are required to provide dependent coverage for children up to age 26. Health plans are also prohibited from establishing annual and lifetime dollar limits on coverage.
  
• Wellness Programs – Employers can offer increased incentives or rewards to employees for participation in a wellness program or for meeting certain health status targets beginning in 2014. Rewards or premium reductions up to 30 percent of the cost of coverage are now permissible.
  
• Free Choice Vouchers – Employers offering coverage are required to provide “free choice vouchers” to qualified employees to purchase insurance through the exchanges. To be eligible for a voucher, an employee’s contribution under the employer’s plan would be between 8 percent and 9.8 percent of income, and the employee’s income would be at or below 400 percent of the Federal Poverty Level.
  
• Flexible Spending Accounts (FSAs) – Contributions to health FSAs would be capped at $2,500 beginning in 2011 and over-the-counter medicines would only qualify for reimbursement with a doctor’s prescription.
  
• Medicare Hospital Insurance Tax – Beginning in 2013, an additional Medicare tax of 0.9 percent is imposed on individuals with income in excess of $250,000 for joint filers or $200,000 for single filers.
  

More Changes Pending

While the new health care legislation was signed into law just this week, some additional changes are expected to be made in the coming days as part of what is called budget reconciliation. These changes, which include several of the effective dates and requirements outlined above, are being made as part of the agreement negotiated between the House and Senate to approve the overall health care reform package.

To review a side-by-side chart of the new health care law and the anticipated changes to it contained in the budget reconciliation bill, click HERE.

Adverse Impact and Reverse Discrimination

Ricci v. DeStefano (2009)

In Ricci v. DeStefano, the Supreme Court held that employers may violate Title VII when they engage in race-conscious decision making to address adverse impact--unless they can demonstrate a "strong basis in evidence" that, had they not taken the action, they would have been liable under a disparate impact theory. In this case, the Supreme Court held that the employer did not meet that threshold standard.

Ricci dealt with the fire department of the city of New Haven, Connecticut (the "City"), which used a written test to help decide which firefighters would be eligible for certain promotions. The City had hired a consultant to develop a test to qualify candidates for promotion to lieutenant and captain. The test had been "content-validated" under the EEOC's Uniform Guidelines on Employee Selection Procedures (Code of Federal Regulations, 29 CFR Part 1607 and 41 CFR Part 60-3), but the results showed that the test had a statistically significant adverse impact on African-American firefighters because they scored significantly lower than white firefighters.

The City rejected the test results and began the promotion process anew. The test results were not certified, and those with the highest test results lost their opportunity to be immediately promoted. As a result, 17 white firefighters and one Hispanic firefighter brought suit against the City alleging intentional discrimination (disparate treatment) based on their race. The Supreme Court agree with the white and Hispanic firefighters.

The Court's decision notes that if an employer announces a test as a selection device and administers the test to individuals who have relied upon the announcement of the selection device, then the employer cannot rely upon the statistical disparity alone to justify ignoring the test results--even if the test would cause adverse impact. If a validation study was conducted and the test is content-valid, job-related, and supported by business necessity, the employer must use the results, unless the employer can demonstrate that there are equally effective devices available having less adverse impact.

In it's opinion, the Court wrote:

Applying a "strong-basis-in-evidence" standard, the court concluded that the City did not have a lawful justification.

The Ricci decision makes clear that compnsating for apparent disparate impact discrimination by changing employment decisions to favor minorities may expose employers to disparate treatment liability to nonminorities. Cases challenging employer tests are usually filed as disparate impact claims. Ricci potentially makes it harder for employers to defend taking action to correct a disparate impact and increases the likelihood of both disparate impact and disparate treatment claims arising out of selection procedures.

While the Ricci case has several "takeaways," one of the most significant is that employers should reexamine their employment testing procedures. It is unwise for an employer to announce and use any test that has not been properly validated. While employers should still assess adverse impact, with respect to unvalidated tests, they should do so very cautiously, under the supervision of an employment attorney, and any changes contemplated as a result of the adverse impact should be addressed in conjunction with legal counsel.

LILLY LEDBETTER FAIR PAY ACT (2009)

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This act amends Title II of the Civil Rights Act of 1964, Title I and Section 503 of the Americans with Disabilities Act of 1990, Sections 501 and 504 of the Rehabilitation Act of 1973, and the Age Discrimination in Employment Act of 1967.

The Ledbetter Act became the first bill signed into law by President Obama. Lilly Ledbetter was paid less than her male coworkers for almost two decades. The act overrules the U.S. Supreme Court's May 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. In that case, the Court held that the 180-day time limit for filing a charge under Title VII of the Civil Rights Act starts after the initial unlawful employment action and does not restart upon receipt of each successive check.

The act provides that the charge-filing periods (with the PHRC--0r cross-file with the EEOC-- within 180 days or with the EEOC--or cross-file with the state agency--within 300 days) begin with:

• A discriminatory compensation decision or other practice is adopted.
  
• An individual becomes subject to the decision or practice.
  
• An individual is affected by the application of a decision or practice, including each time waves, benefits, or compensation is paid, resulting in whole or in part from such a decision or other practice.
  

Effectively, the statute of limitations starts each time an employee receives a paycheck based on the decision

The law also expands the plaintiff field and provides that an unlawful employment practice occurs when "an aggrieved person" is affected by a discriminatory compensation decision or practice. Now, non-employees such as family members, including spouses and children of a deceased worker, and potentially others, may become plaintiffs in discrimination suits claiming that pension benefits are reduced because of a discriminatory decision.

Additional information on the laws enforced by the Equal Employment Opportunity Commission (EEOC) can be found at www.eeoc.gov

Full text of Lilly Ledbetter Fair Pay Act

FLSA Overtime Security Advisor

When Congress enacted the FLSA, it created an exemption from the minimum wage and overtime pay requirements for "any employee employed in a bona fide executive, administrative, or professional capacity or in the capacity of outside salesman." Congress did not define these terms but instead granted authority to the Secretary of Labor to do so. Because your definitions of these terms may not match DOL's definitions, you may want to first review the Fact Sheet for a particular exemption to learn more about it or you may want to review the occupational index for help in determining which section to use. Please remember that to qualify for an exemption, an employee must meet specific duties tests and, in most cases, minimum compensation requirements.

FLSA Overtime Security Advisor Elaws page.

DOL Releases Model Employer CHIP Notice

Background

Most states currently provide premium assistance under Medicaid or CHIP programs for health coverage of qualifying residents and their dependents. At present, only 10 states do not offer premium assistance – Connecticut, Delaware, Hawaii, Illinois, Maryland, Michigan, Mississippi, Ohio, South Dakota, and Tennessee.

The Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA) requires employers that offer group health plans to notify their employees of potential opportunities to receive premium assistance under current state programs. CHIPRA also added new HIPAA special enrollment rights that allow employees and their dependents to enroll in their employers’ group health plans if they lose eligibility for Medicaid or CHIP coverage or become eligible for premium assistance under Medicaid or CHIP. The DOL has now released a Model Employer CHIP Notice that employers may use to satisfy their new notice obligations under CHIPRA.

Model Notice

Employers Required to Provide Notice. An employer must provide the Employer CHIP notice if it maintains a group health plan (i.e., if the employer provides medical care benefits directly or through insurance, reimbursement, or otherwise) in a state that provides premium assistance under Medicaid or under a state children’s health insurance program for the purchase of group health plan coverage. Thus, whether an employer is subject to the notice requirement depends on where the group health plan participants or beneficiaries reside – not the location or principal place of business of the employer, plan, plan administrator, insurer or affiliated service provider.

Employees Entitled to Notice. Regardless of plan enrollment status, each employee who resides in a state that offers premium assistance programs must receive notice of potential opportunities for assistance. If the state in which the employee (or employee’s family) resides does not offer premium assistance programs, no notice is required.

Developing an Affirmative Action Plan

To develop a plan:

• Analyze all major job groups within your workforce to determine the representation of women or minorities within each job group.
  
  
• Determine the availability of minorities or women within a reasonable recruitment area by job group by using the data presented in Factor 1 available in the "Factors and Data" section
  
  • Availability is defined as an estimate of the number of minorities or women in the labor force in a given job group, expressed as a percentage of all qualified persons in the labor force in the job group. The purpose of the availability determination is to establish a benchmark against which the demographic composition of the contractor's incumbent workforce can be compared in order to determine whether barriers to equal employment opportunity may exist within particular job groups."
    
    
  • Previously, the contractors were required to consider each of eight factors when determining availability. However, the OFCCP revised these regulations in November 2000. You can obtain additional information on these regulations from the OFCCP.
    

• Complete a utilization analysis by comparing the representation of minorities and women in each job group within your organization with their representation among those available to be employed in that job group within the reasonable recruitment area. Identify areas of underutilization.
  
  
  
• Calculate the percentages of minorities or women among those promotable, transferable, and trainable within the contractor’s organization as explained in Factor 2 available in the “Factors and Data" section.
  
  
• Establish placement goals that serve to eliminate under-representation in groups discovered through the analysis and measure the effectiveness of efforts directed towards achieving results.
  

Source: http://www.paworkstats.state.pa.us

M.D. Pa.: FMLA’s Administrative Complexities Create Challenges for Employers

The U.S. District Court for the Middle District of Pennsylvania revisited a case on remand from the 3rd U.S. Circuit Court of Appeals and allowed an insurance company employee’s claims of Family and Medical Leave Act (FMLA) interference and retaliation to go forward. The case is noteworthy on more than one point; the 3rd Circuit remanded the case on findings that:

• The employee’s hours worked at home might be counted toward the 1,250 minimum hours needed to be eligible for FMLA leave.
  
  
• Evidence of ongoing “antagonism” between the company and the employee might form the basis of FMLA retaliation.
  
  
• A request for FMLA leave may be viewed as a “protected activity” under Pennsylvania’s Human Relations Act.
  

Nationwide Insurance Co. hired Brenda Erdman in 1980. Erdman was a full-time employee until 1998, when she began to work part time in order to care for her daughter, who was born with Down syndrome. In 2002, Erdman’s request for a four-day workweek schedule was granted. However, Erdman regularly worked extra hours from home, for which her supervisor consistently authorized payment, allowing Erdman to exercise “comp” time based on those hours.

In 2002, Erdman began to report to a new supervisor, and she asked that person whether continued comp time would be allowed. Although there was no specific response, the supervisor made no initial objection to Erdman’s continued use of comp time. However, in September 2002, that supervisor admonished Erdman on a number of performance issues and then told her that she could no longer use extra hours as comp time.

In February 2003, Nationwide informed Erdman that her part-time position was being eliminated and offered her a full-time job, which Erdman accepted. In April 2003, Erdman submitted paperwork asking for FMLA leave for the month of August, which she needed to prepare her daughter for school. Nationwide fired Erdman on May 9, 2003.

Erdman filed a lawsuit against Nationwide, including claims under the FMLA and the Pennsylvania Human Relations Act. In dismissing the case, the lower court initially granted summary judgment in favor of the company, holding that Erdman had not worked the necessary 1,250 hours to qualify for FMLA leave. Erdman appealed.

Last year, the 3rd Circuit addressed an issue of first impression for that court: whether Erdman’s off-site work hours could be counted toward the number of hours needed to qualify for leave under the FMLA. The court decided that the issue was a question of fact because the FMLA counts all work hours that an employer “knows or has reason to believe” are being worked by the employee.

The 3rd Circuit held that a reasonable jury could conclude that Nationwide had constructive notice of the fact that Erdman had worked from home and therefore could find that she had worked the requisite number of hours to qualify for FMLA leave. The case was remanded back to the district court following that determination.

On remand, the district court specifically discussed Erdman’s FMLA retaliation claim and determined that Erdman had provided sufficient evidence of “ongoing antagonism”—including monitoring personal calls, misapplying company policies and providing inconsistent reasons for the termination—to establish a causal link between her FMLA request and her firing. According to the court, those actions could allow a trier of fact to discredit the company’s contention that “incidents of inappropriate workplace behavior” prompted it to terminate Erdman’s employment.

To establish a prima-facie case of retaliation under the Pennsylvania Human Relations Act (PHRA), Erdman had to show that she engaged in a protected activity for which an adverse action was taken. In this case, Erdman claimed that the protected activity was her request for FMLA leave. She pointed out that the PHRA prohibits sex-based discrimination, and one basis of the FMLA as stated by Congress is to “expressly delineate how sexual/gender discrimination can occur in caretaker roles and how the purpose of the FMLA is to minimize employment discrimination based on sex.” Here, the district court predicted that, although Pennsylvania courts have not yet addressed the issue, the Pennsylvania Supreme Court would find that an FMLA request qualifies as a protected activity under the PHRA. The district court therefore denied Nationwide’s motion for summary judgment on the PHRA retaliation claim.

Erdman v. Nationwide Insurance Co., M.D. Pa., No. 1:05-cv-0944 (Jan. 15, 2010).

Professional Pointer: This case is one that employers should review and understand before taking an adverse employment action against any employee who is on FMLA leave or who has requested such leave. While employers are entitled to impose disciplinary actions based on violation of company policies and procedures, such actions cannot be based on an employee’s FMLA leave. Importantly, frustration with an employee’s FMLA-related absences or intermittent-leave schedule does not provide a sufficient legal basis for disciplinary action against that employee.

by Maria Greco Danaher, who is an attorney with the firm of Ogletree Deakins in Pittsburgh. Reprinted from www.shrm.org

This article should not be construed as legal advice. Employers should consult their own labor law attorneys should they have any questions.

Pennsylvania Issues Proposed Guidance On Employer Practice Of Excluding Applicants From Employment Based On Criminal Convictions

The Pennsylvania Human Relations Commission (PHRC) recently proposed Policy Guidance that would apply a rebuttable presumption of disparate impact discrimination when an employer rejects African American and Hispanic applicants from employment pursuant to a policy regarding prior criminal convictions.1 Under the Policy Guidance, when investigating complaints of unlawful disparate impact discrimination by African American and Hispanic complainants, the PHRC will assume that the complainant has established a prima facie case under Section 5 of the Pennsylvania Human Relations Act (PHRA). This permits a claim to proceed administratively without requiring the complainant to provide statistical evidence that the employer's policy has a disparate impact on African Americans or Hispanics. The PHRC has taken this position in light of statistics that demonstrate African Americans and Hispanics are convicted at a rate disproportionately greater than their representation in the population nationally, with an even greater disparity in Pennsylvania.

The proposed Policy Guidance applies only to claims of disparate impact, not disparate treatment. Disparate impact occurs when a policy or practice that does not appear to be discriminatory on its face, nevertheless disproportionately and negatively affects a group of individuals based on a certain characteristic protected by equal employment laws, such as race. Disparate treatment occurs when an employer unlawfully considers a protected characteristic when making an employment decision, for example, when an employer rejects African American applicants who have a conviction record, but does not reject similarly situated Caucasian applicants. The PHRC will continue to use its standard policies and procedures for investigating claims of disparate treatment.

How Can an Employer Defend Itself from Such Claims?

Under the Policy Guidance, an employer can rebut the presumption of disparate impact by using conviction data from a more limited geographical boundary than the entire Commonwealth of Pennsylvania, or by using conviction data for the specific crimes being screened. An employer may also use "applicant pool" data to show that fewer African Americans and Hispanics applied for the position in question compared to other groups. However, the Policy Guidance notes that applicant pool data may have little persuasive effect on the PHRC because such data may exclude otherwise interested applicants who choose not to apply due to the existence of the policy. Further, the Policy Guidance does not prohibit employers from denying employment based on a criminal record where the employer is required or authorized to do so based on existing state or federal laws (e.g., laws regarding child care and nursing home positions). However, an employer cannot rebut the presumption of disparate impact by relying on evidence of diversity within its workplace (known as the "bottom-line defense").

An employer may also defend against claims of disparate impact by presenting evidence that its policy or practice is required as a matter of business necessity. To demonstrate business necessity, an employer must show that the rejected applicant claiming disparate impact has been convicted of a crime as opposed to merely being arrested, and would pose an unacceptable level of risk in the workplace. In evaluating the employer's claim that the applicant would create an unacceptable level of risk, the PHRC will consider the following factors:

• The circumstances, number and seriousness of the applicant's prior offenses;
  
• Whether the applicant's prior conviction substantially relates to his or her suitability for the job, considering the duties and responsibilities of the job and the relationship of those duties and responsibilities to the applicant's prior criminal offenses;
  
• The length of time elapsed since the conviction or release from prison, with a presumption against business necessity if there has been seven or more years (excluding time spent incarcerated) between the applicant's last offense and rejection from the job;
  
• Evidence of the applicant's rehabilitation, including satisfactory completion of parole or probation, maintenance of steady employment, subsequent education or training and letters of recommendation from employers or parole or probation officers who have worked with the applicant; and
  
• The manner in which the employer solicited the applicant's criminal history during the hiring process (i.e., the Commission will look favorably upon an employer that has a hiring process that does not consider criminal history until the later stages of the hiring process, for example, after an interview or a conditional offer of employment has been made).
  

If the employer is able to demonstrate that it rejected the applicant due to business necessity, the applicant may still prevail on a disparate impact claim by showing that there was an alternative, less discriminatory policy or practice that the employer could have adopted that would have satisfied its demonstrated business needs.

The proposed Policy Guidance does not have the force of a statute or administrative regulation, has no binding force or effect, and may not be cited as binding legal authority for any Commission ruling or other adjudication. It is intended only to indicate the manner in which the Commission exercises its administrative discretion. However, employers should expect it to be used against them as yet another tool, even indirectly as persuasive authority, in claims of failure to hire due to race discrimination.

Pennsylvania already has a statute in force, the Pennsylvania Criminal History Record Information Act (PCHRIA), which generally prohibits employers from considering during the hiring process arrests which did not lead to a conviction.2 Under the PCHRIA, employers may consider felony and misdemeanor convictions only if "they relate to the applicant's suitability for employment in the position for which he applied." However, because that statute is not enforced by the Commission, the Commission felt that it was underutilized.

What Should Employers Be Doing Now

The PHRC is tentatively scheduled to consider the final Policy Guidance during its monthly public meeting on February 22, 2010, after which the Policy Guidance may be implemented in its current or slightly modified form. While it might be several months before the Policy Guidance is in force, Pennsylvania employers should consider auditing their hiring practices now to ensure that they would pass muster under the PHRC's stated policy objectives regarding the consideration of criminal convictions in the hiring process.

Jason E. Ruff is an associate in the Philadelphia office of Littler Mendelson.

Practicing Netiquette in Your Email Communication

Email has become a standard form of communicating in the business world, but the protocols of using the Internet to exchange messages are still being formulated in many circles. Forbes.com, an Internet business newsletter, has created a list of do’s and dont’s for those regularly communicating via email that are worthy of consideration. The list includes:

• Assume all email is public
• Get to the point as early as the subject line and/or initial paragraph
• Keep as short as possible
• Break message up into paragraphs and bullets
• Forgo unnecessary graphic attachments
• Mirror your correspondent in style and tone
• When emotions rise, slow down
• Don’t resend unanswered email a second time

Opinions differ on the use of emoticons in business email. Greater detail about each of the above points can be found at the Forbes.com website

Breaking Down the Form I-9

In July 2009, U.S. Immigration and Customs Enforcement announced that it sent notices to 652 businesses nationwide informing them that they have been targeted for Form I-9 audits. The audits will entail inspection of hiring records to determine whether the employers are in compliance.

While on its face the Form I-9 appears simple, it is full of quirks and intricacies that are often a source of confusion for employers. That is why it is imperative that employers take great care to ensure that the form is completed accurately, filed on time, and retained for the requisite time period.

The Form I-9 is a one-page form that employees complete to verify their identity and prove that they are permitted to work in the U.S. It has three sections.

Section 1 asks the employee to complete basic biographical information and certify that he or she is a U.S. citizen, permanent resident, or authorized to work under another status.

Section 2 is completed by the employer, which must verify, and attest under penalty of perjury, which documents an employee presented to prove the employee's identity and right to work and that the paperwork was completed in a timely manner. Employees may present items from List A in the instructions that prove both identity and authorization to work, or they may provide a combination of an identification document from List B and a document that confirms employment eligibility from List C.

Section 3 is used to reverify expiring employment authorization. It is reserved for employers who must occasionally update the Form I-9 if the employee is not authorized to permanently work in the U.S.

When presented with the supporting documents asked for by the Form I-9, an employer must accept them, as long as they appear to be reasonably genuine and to relate to the individual presenting them. It is important to note that an employer must not accept documents that do not reasonably appear to be genuine or to relate to the person presenting them. Due to a recent change in Form I-9 policy, expired documents and photocopies of supporting documents are no longer acceptable.

Many times, the Form I-9 process begins on the employee's first day of work, when the employee is asked to complete the first section of the Form I-9. The employee then has three days to provide the requisite supporting documents.

For Form I-9 purposes, an individual is not considered a rehire if the employee was on a leave of absence (paid or unpaid), the employee was temporarily laid off, or the employment is considered seasonal. In order to qualify as a rehire, however, a seasonal employee must have had a reasonable expectation of continued employment.

All employers are required to retain Forms I-9 for three years after the date employment begins or one year after the date of termination, whichever is later. Employers must be able to make Forms I-9 available for inspection if called upon by an officer of DHS or the U.S. Department of Labor. Failure to do so could result in the imposition of civil fines.

Senate Considers Payroll Tax 'Holiday' in Jobs Bill

Two key Senators proposed bipartisan draft legislation designed to address the nation's high unemployment rate by providing hiring incentives to employers. The proposal was introduced Thursday by Sens. Max Baucus (D-MT), chairman of the Senate Finance Committee, and Charles Grassley (R-IA), the committee's top-ranking Republican. But Senate Majority Leader Harry Reid (D-NV) almost immediately threw cold water on portions of the bill designed to attract Republican support.

A key provision of the bill is a payroll tax exemption for employers that hire previously unemployed workers. The brainchild of Sens. Charles Schumer (D-NY) and Orrin Hatch (R-UT), the provision would exempt qualified employers from paying Social Security payroll taxes for certain qualified individuals. The maximum value of the exemption would be equal to 6.2% of wages up to a cap of $106,800.

A "qualified individual" is defined in the proposal as a person who begins employment with a qualified employer after Feb. 3 and before Jan. 1, 2011, and who signs an affidavit certifying that he or she had not been employed for more than 40 hours in the 60-day period immediately prior to beginning employment, is not being employed to replace another employee of the employer except one who has quit or been fired for cause, and is not "related" to the employer under rules set forth in the U.S. tax code.

The exemption applies to wages paid during the period beginning the day after the legislation is enacted and ending Dec. 31 for "services performed in a trade or business" of a "qualified employer," which is defined as any private (nongovernment) employer.

The payroll tax credit would be coordinated with the Work Opportunity Tax Credit so that an employer could not claim both credits.

In addition to the payroll tax credit, employers would be entitled to an additional $1,000 income tax credit for every new employee hired in 2010 who is employed for 52 consecutive weeks. Such credit would be taken on the employer's 2011 income tax return.

The draft does not include a proposal made by President Obama that would provide employers with a $5,000 tax credit for each net new job created in 2010.

The Baucus–Grassley proposal includes additional provisions designed to appeal to Republicans, such as extensions of expiring tax provisions and pension funding relief. Reid objected to these provisions, saying they went beyond the goal of job creation.

Reid is promoting his own streamlined jobs bill that will include key elements of the Baucus–Grassley provisions, including extension of a tax code provision allowing small businesses to expense certain capital expenditures, and the payroll tax and employee retention tax credits proposed by Schumer and Hatch. But it is unclear whether a scaled-back bill would have enough Republican support to pass.

Reid said the Senate likely will take up the bill this week after the senators come back from their Presidents Day recess.

Ed Lenz

Workplace Discrimination Charges Near Record Number

The United States Equal Employment Opportunity Commission (EEOC) announced in January that, during the fiscal year ending September 30, 2009 it received more than 93,000 workplace discrimination charges nationwide and obtained relief for victims totaling more than $376 million.

It is the second highest number of charges the EEOC has received. (The enforcement and litigation statistics can be found on the EEOC’s website.)

According to an EEOC release, the “data show that private sector job bias charges (which include those filed against state and local governments) alleging discrimination based on disability, religion and/or national origin hit record highs.” In addition, the number of charges claimed age-based discrimination reached the second-highest level ever. The EEOC also reported that, continuing “a decade-long trend, the most frequently filed charges with the EEOC in FY 2009 were charges alleging discrimination based on race (36%), retaliation (36%), and sex-based discrimination (30%). Multiple types of discrimination may be alleged in a single charge filing.”

The EEOC suggested that the level of charges filed “may be due to multiple factors, including greater accessibility of the EEOC to the public, economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of their rights under the law, and changes to the agency’s intake practices that cut down on the steps needed for an individual to file a charge.”

by Jon Vegosen Working World Cafe

Eleventh Circuit holds that pervasive use of gender-specific vulgarities can create a hostile workplace for women, even if they are not directed at a specific female employee.

After working as a sales representative for three years at C.H. Robinson Worldwide, Ingrid Reeves sued the company for allegedly subjecting her to a hostile work environment in violation of Title VII. Reeves alleged she was subjected daily to gender-specific vulgarities from her male co-workers. She stated they also talked within ear-shot about masturbation and bestiality and often listened to a Howard Stern-like radio show loaded with sexual references. The trial court dismissed Reeves’s claims. The trial court found that the language and sexual comments were not directed at her specifically. Because the offensive behavior was not motivated by her gender, the trial court held that Reeves had no Title VII claims.

On appeal, the Eleventh Circuit Court of Appeals initially reversed the trial court’s ruling, holding that Reeves had presented a jury question about whether the offensive conduct was based on her sex. In 2009, the court vacated that ruling and agreed to rehear the case en banc. In a unanimous ruling, the court held that a jury could reasonably find that the offensive conduct was “humiliating and degrading” to women specifically, stating as follows:

"Instead, a jury reasonably could find that it was a workplace that exposed Reeves to disadvantageous terms or conditions of employment to which members of the other sex were not exposed. Title VII was plainly designed to protect members of a protected group from adverse conditions of employment like those Reeves alleges were endemic to C.H. Robinson.

The court further noted that referring to a female as a “bitch” is “firmly rooted in gender” and that such language “is humiliating and degrading based on sex” regardless of the intended target.

by Jodie L. Hill .... jodielhill.com

Full Opinion (pdf)

MEAL AND BREAK PERIODS

Meal and lunch periods are staples of every employee's work day. Providing and employee a reasonable amount of time tobreak for a meal during their shift seems like a simpole matter of employer courtesy, but many employers may not realize that specific rules apply to meal and lunch periods.

Federal Law

Currently, no federal law specifically addresses meal and break periods. The Fair Labor Standards Act (FLSA) includes only general provisions about what constitutes a bona fide meal period as opposed to a rest period. Though Federal Law does not impose specific restrictions, many states have passes laws about meal period entitlements.

Relief from Duty

The FLSA stresses that bona fide meal periods include relief from duty for the purposes of eating regular meals. As such, employees who eat at their workstations while on duty are engaged in rest periods, not bona fide meal periods. According to the FLSA, rest periods are compensable. Allowing employees to work through their lunch may constitute a violation of the FLSA and/or applicable state wage and hour laws (it does in Pennsylvania). To ensure that lunch breaks are considered unpaid "bona-fide meal periods" under the FLSA, employers must require employees to leave their workstations and clock out for lunch.

State Law

Pennsylvania employers are required to provide break periods of at least 30 minutes for minors ages 14 through 17 who work five or more consecutive hours. Employers are not required to give breaks for employees 18 and over. If the employer allows breaks, and they last less than 20 minutes, the employee must be paid for the break. If the employer allows meal periods, the employer is not required to pay the employee for the meal period PROVIDED they do not work during their meal period and it lasts more than 20 minutes. A collective bargaining agreement may also govern this issue.

Expanding the Definition of an 'Accident Witness'

When investigating a workplace injury on a job site, one standard practice is to locate and interview witnesses. So, who do you look for? In most cases we look for anyone who saw the injury. After all, that is the definition of a witness, right?

If the claimant is a predator, there will likely be no witnesses to the alleged injury. No one saw the claimant get hurt so the conclusion that “there were no witnesses” is made. In reality, there are some witnesses that may have valuable information to contribute to the investigation. These will be supervisors or coworkers who were exposed to the claimant before and after the alleged injury.

Suppose a claimant reports to work complaining of leg pain to his coworkers even before the shift begins and then later that day claims that the same leg was injured during the course of working. Unfortunately, this happens quite often. The claimant may come to work on the day of the alleged injury already limping or cradling an injured arm and then allege a workplace injury to cover the medical costs arising from an injury that actually occurred at home. These limps, moans, and groans prior to the injury may be valuable information to risk managers and claims adjusters as they process the workers compensation claim and may mean serious savings to your company.

Consider interviewing people who worked with the claimant after the injury. For example, if the claimant states that the injury occurred midway through the shift, but no one actually saw it happen and the claimant finished the shift; find out if the claimant's behavior during the remainder of the shift was indicative of the injury or if it was “normal” in the eyes of supervisors and coworkers.

Often, fraudulent claims are filed for injuries that actually happened over a weekend or holiday. If the claimant reports the injury on Monday morning or after a holiday, this would be a good time to check with people who worked with the claimant during the shift on which the injury allegedly occurred to gather information about behavior that might indicate a fraudulent claim.

Remember that a witness is not only a person who is aware of the injury, but someone who knows about the claimant. Always include supervisors and coworkers in your investigation. This will improve the quality of the investigation and may provide valuable information to assist in the fair and accurate processing of the claim.

HCS--Hazard Communication Standard

What?

Fed-OSHA's Hazard Communication Standard (29 CFR 1910.1200) imposes specific training, labeling, and documentation requirements on businesses that work with hazardous chemicals. This regulation is the most frequently-cited OSHA standard for general industry employers, meaning that more businesses are fined for non-compliance with the rule than any other safety regulation.

Who?

The standard applies to businesses with 1 or more employees under Fed-OSHA jurisdiction if any hazardous chemical is used or stored in the workplace. It is enforced by Fed-OSHA. The "hazard determination" provisions of the standard apply only to producers of hazardous chemicals. The remainder of the standard applies to users of hazardous chemicals.

How?

The core element of the rule is a document called a "Material Safety Data Sheet" (MSDS), which producers of hazardous chemicals must include with each shipment. MSDS's list the chemical's ingredients, characteristics, health hazards, fire/explosion hazards, control measures, and safe handling practices. Employers must store these MSDS's for each chemical in their facility, and must grant employee access to these sheets upon request.

Requirements

Employers covered by the standard must implement a written hazard communication program addressing such topics as storage and retention of MSDS's, container labeling, safe handling, and employee training. The training requirement requires employers to train their employees on how to read chemical labels and how to use the chemicals safely (including the types of personal protective equipment that must be worn, if any).

Penalties

Penalties for non-compliance depend upon the severity of violation and the safety and health record of the business. Non-serious violations are punishable by fines up to $7000.00 per violation. Willful and repeat violations are punishable by fines up to $70,000.00 per violation.

Recommnedations

Since the definition of "hazardous chemical" as listed in the standard is quite broad, the Hazard Communication standard can be interpreted as applicable to virtually every workplace. As such, implementing a written program in every facility is highly recommended, regardless of whether the employer is aware of whether on-site chemicals are truly "hazardous."

Progressive Point Systems

Be Careful of Point Sytems. If you use a progressive point system for absenteeism, make certain to document the reasons for all applied absences and whether the employee called off properly in all instances. When determining unemployment eligibility, PA-UC will take into account ALL absences applied against these points.

From UCP-41 Section 402(e)

Absenteeism/Tardiness - Prior to being discharged for absenteeism or tardiness, the claimant must have been warned about such conduct. In addition, there have been cases where one absence was sufficient to show willful misconduct. The reason for the last occurrence will be taken into consideration in determining if the claimant had a good reason for being tardy or absent. Absenteeism alone may justify a discharge, but without a showing of wanton and willful disregard of the employer's interests, benefits cannot be denied. Generally, if an individual has good cause for missing work, such as being ill or having an ill child, and reports off according to the employer's policy, that individual's conduct does not rise to the level of willful misconduct. However, there can be factors that may affect the eligibility determination, such as the employer's rule for calling off, the method which the individual used in calling off, the reason for the last incident, the nature of the work, past attendance record, and previous warnings for absenteeism or tardiness. When the employer has a progressive discipline point system and an individual is discharged due to accumulating points as a result of absenteeism/tardiness, all absences/tardiness will be reviewed to determine if any of the absences were justified. Willful misconduct is not established if the claimant had good cause for any of the absences.