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San Francisco Minimum Wage Tops $10 per Hour and Eight States Increase Minimum Wage for 2012

Wednesday, December 21st, 2011

California regarded as an “employee friendly” state with one of the highest minimum wages in the country at $8.00 per hour.  The City of San Francisco however has an even higher minimum wage that the state minimum wage and beginning in January 2012 will have the highest minimum wage in the country at $10.24 per hour.  Eight states will increase minimum wage beginning January 2012. The federal minimum wage remains unchanged at $7.25 per hour.

Arizona—Standard minimum wage increases from $7.35 to $7.65 an hour. Minimum wage for tipped employees increases from $4.35 to $4.65. (The definition of a “tipped employee” differs under many state laws. However, the term is most commonly used for certain employees in the hospitality industry.)

Colorado—Standard minimum wage increases from $7.36 to $7.64 an hour. Minimum wage for tipped employees increases from $4.34 to $4.62 an hour.

Florida—Standard minimum wage increases from $7.31 to $7.67 an hour. Minimum wage for tipped employees increases from $4.29 to $4.65 an hour.

Montana—Standard wage increases from $7.35 to $7.65 an hour. (Montana law does not allow employers to take a tip credit against minimum wage for tipped employees.)

Ohio—Standard minimum wage increases from $7.40 to $7.70 an hour. Minimum wage for tipped employees increases from $3.70 to $3.85 an hour.

Oregon—Standard wage increases from $8.50 to $8.80 an hour. (Oregon law does not allow employers to take a tip credit against minimum wage for tipped employees.)

Vermont—Standard minimum wage increases from $8.15 to $8.46 an hour. Minimum wage for tipped employees increases from $3.95 to $4.10 an hour.

Washington—Standard minimum wage increases from $8.67 to $9.04 an hour. (Washington law does not allow employers to take a tip credit against minimum wage for tipped employees.)

 

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West Virginia Auto Dealership Learns Expensive Lesson in ADA Compliance and Meaning of Reasonable Accomodations

Tuesday, December 20th, 2011

A West Virginia auto dealership learned a very expensive, $56,000 plus legal fees, lesson in ADA compliance this month.  The dealership settled a federal disability discrimination lawsuit filed by the U.S. Equal  Employment Opportunity Commission (EEOC) on December  16, 2011.  The EEOC had charged that Jim Robinson Ford-Lincoln-Mercury  unlawfully refused to accommodate the disability of a salesperson and then fired  him.

The EEOC charged that Jim Robinson  Ford fired Bryan Perry because of his disability, a leg condition that affected  his ability to walk, after denying him a reasonable accommodation. Such alleged conduct violates the Americans  with Disabilities Act (ADA).

In addition to the $56,000 in  monetary relief paid to Perry, the three-year consent decree resolving the  lawsuit enjoins Jim Robinson Ford from engaging in any further employment  practice that discriminates based on disability or retaliation. In addition, the decree mandates that the  company will adopt certain procedures and training to enable it to accurately  assess whether disabled employees can perform the essential functions of their  jobs and to identify reasonable accommodations that will assist disabled  employees, according to the EEOC press release.

Under the ADA, if an employer is asked to provide reasonable accommodations to a disabled employee the employee must establish what are truly essential and what are non-essential functions of the job.  This requirement is just one of the many reasons why it is so important for a company to have accurate and complete job description for each position.  Employers are also required to make reasonable accommodations with the intent being to balance good process practices, monetary concerns and the requirements of the job.  The ADA does not provide a specific definition of what is a reasonable accommodation since what is a considered reasonable will depend on the facts and circumstances of a particular situation. Reasonable accommodation may include modifying work schedules, making physical changes to the work site or equipment, adjusting supervisory methods, modifying a workplace policy, restructuring a job, providing a job coach, and/or reassigning an employee to a vacant position for which (s)he is qualified.  Reasonable accommodation does not require lowering performance standards or removing essential functions of the individual’s job.

Director Spencer H. Lewis, Jr., of the EEOC’s Philadelphia  District Office, commented “The  employer must then work to identify a reasonable accommodation for the  employee’s disability. Earnest, interactive  communication with the employee, viewing the purpose of the job and its  functions realistically, and carefully researching and considering options for reasonable  accommodation of the disability are all keys to ADA compliance.”

In  Fiscal Year 2011, the EEOC received a record 99,947 private-sector workplace  discrimination charges, the highest number of charges in the agency’s 46-year  history.

Further  information about this case is available at http://www.eeoc.gov/eeoc/newsroom/release/12-16-11.cfm

To download a free template to create job descriptions go to http://www.kpaonline.com/what-we-do/hr/hr-resources/whitepapers.html

 

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Getting Ahead of New HR Regulations in 2012- Plan, Prepare and Protect

Wednesday, December 7th, 2011

  The federal Department of Labor (DOL) recently announced that it will significantly change the approach on how it regulates employers’ compliance with certain federal laws. In  2012 the DOL will issue regulations requiring employers to take affirmative steps to ensure compliance with federal wage-and-hour, safety, and anti-discrimination laws. The DOL is moving from the “catch me as you can” approach to regulatory compliance toward a much more proactive enforcement stance with the burden on the employer to “plan, prepare and protect”.  So what’s your plan? Are you prepared? How will you protect? Let’s take it step by step to understand what “plan, prepare and protect” really means.

 

Plan will require employers to create plans and processes that assess and demonstrate compliance with the federal laws.

Prevent will require employers to implement the plans and demonstrate to the workers that the plans are actually in use.

Protect will require employers to designate certain individual at the company to be tasked with implementing plans and evaluating their effectiveness.

The state of California (as usual) isn’t waiting on the federal Department of Labor. There are several new regulations that take effect on January 1 that will require employers to be much more proactive in notification to employees regarding wage and hour.  California employers should be sure to attend tomorrow’s webinar, “California HR Legislative Update” presented by John Boggs, nationally recognized labor attorney.  You can register for the webinar at http://www.kpaonline.com.

 

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New Tire Charts from OSHA

Monday, December 5th, 2011

There has been a lot of buzz lately over tires. It seems like even touching them is regulated by some federal agency or another. Additionally, I’ve read a few lawsuits, where questions of dealership liability in accidents have been raised, and that doesn’t begin to touch the proliferation of information around waste tire generation, storage or hauling.

So I was not surprised to read that OSHA has revised materials addressing handling and storage standards for workers servicing single-piece and multi-piece rim wheels.

“These updated materials will provide readily accessible information on how to prevent worker injuries and deaths from tire-servicing incidents,” said Dr. David Michaels, Assistant Secretary of Labor for OSHA. “The new format and easy access will simplify compliance with the standard by helping employers provide their workers with vital servicing information.”

The list of Revised Charts

Demounting and Mounting Procedures for Tube-type Truck and Bus Tires Chart

(OSHA 3402) (English: PDF)

Demounting and Mounting Procedures for Tubeless Truck and Bus Tires Chart
(OSHA 3401) (English: PDF)

Multi-Piece Rim Matching Chart
(OSHA 3403) (English: PDF)

Servicing Multi-Piece and Single-Piece Rim Wheels 29 CFR 1910.177 Manual

(OSHA 3421) (English: PDF)

 

You can also download all of these resources and other publications on OSHA’s Publications page.

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Unemployment Rate Declines for First Time Since 2009

Monday, December 5th, 2011

The Bureau of Labor Statistics announced on December 2, 2011  that 120,000 jobs were added in November, and the unemployment rate fell to 8.6 percent. This is the lowest rate since 2009. The largest job gains were in  retail trade, professional and business services, health care, and leisure and hospitality.  The Bureau also reported that productivity rose 2.3 percent in the non-farm business sector in third quarter 2011; unit labor costs decreased 2.5 percent (seasonally adjusted annual rates). In manufacturing, productivity grew 5.0 percent and unit labor costs fell 5.1 percent.

If you are an employer who is finally starting to hire again or never stopped due to turn-over at your organization download the free white paper “HR Compliance Checklist” and do a quick self audit of your hiring and other HR practices.   Make sure that you are hiring in a way that protects you from discrimination claims while ensuring you are selecting the best people for your company.

The white paper “HR Compliance Checklist” is available at  http://www.kpaonline.com/what-we-do/hr/hr-resources/whitepapers.html

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Federal Judge Rules in Favor of Business on Meal and Break Laws

Friday, November 18th, 2011

In the latest ruling on meal and break laws, a federal judge in the Southern District of California ruled in Favor of Penske Logistics. According to this decision, meals and rest breaks are not covered under wage laws. That means that meal and break laws for the transportation industry as defined by individual states are superseded by FAAA laws, requiring that a state:

“may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … or any motor private carrier, broker, or freight forwarded with respect to the transportation of property.”

Employer’s Bottom Line:

This court’s decision is encouraging for California employers who fit within the definition of “motor carriers.” However, it is too early to tell whether it may be relied upon because it is likely that the order will be reviewed on appeal.

 

You can read more about the case at our partner’s page:

http://www.fordharrison.com/shownews.aspx?show=7703

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OSHA Proposes Changes to Recordkeeping Requirements for Dealerships

Thursday, June 30th, 2011

OSHA is currently requesting comments for a proposed regulation change to their recordkeeping requirements.  Currently, new and used car dealerships classified under Standard Industrial Classification (SIC) code 5511 are considered a “low risk industry” and are partially exempt from OSHA’s recordkeeping requirements.  In this proposed regulation, in an effort to embrace a new industrial classification system introduced in 1997, OSHA is reclassifying new and used car dealerships as North American Industry Classification System (NAICS) Code 4411 – Automobile Dealers.  This new classification and the associated injury and illness statistics place dealerships outside the “low risk industry” profile, disqualifying them from the partial exemption.  If this rule is accepted as is, dealers will be required to maintain additional accident information and post summaries of this data at the dealership every year.

Additional changes in this proposed regulation will require businesses to report work-related amputations to OSHA and all work-related fatalities and in-patient hospitalizations.  Currently reporting is only required for work-related fatalities and in-patient hospitalizations of three or more employees.

If you’d like to voice your opinion to OSHA on this proposed regulation  they would love your feedback on the following:

1. Should any additional industries be exempt from any of the recordkeeping requirements in Part 1904?

2. Should OSHA base partial exemptions on more detailed or more aggregated industry classifications, such as two-digit, three-digit, or six-digit NAICS codes?

3. Which industry sectors, if any, should be ineligible for partial exemption?

4. Instead of using an average DART rate of 75 percent of the most recent national DART rate, is there a better way to determine which industries should be included in Appendix A?

5. Should OSHA consider numbers of workers injured or made ill in each industry in addition to industry injury/illness rates in determining eligibility for partial exemption?

6. Are there any other data that should be applied as additional or alternative criteria for purposes of determining eligibility for partial exemption?

7. Should OSHA regularly update the list of lower-hazard exempted industries? If so, how frequently should the list be updated?

8. Are there any specific types of training, education, and compliance assistance OSHA could provide that would be particularly helpful in facilitating compliance with the recordkeeping requirements?

Comments may be submitted online at Regulations.gov

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Who Are You Really Hiring?

Tuesday, May 17th, 2011

If you aren’t doing background checks and drug screens before you hire then you really don’t know who you are hiring.  KPA has found that over 30% of applicants we process through our HR system do not provide complete or accurate information on their application. To make a good hiring decision and to protect yourself in the event of a negligent hiring lawsuit a background check and drug test are a must. I’ll never forget having to testify against a client when I worked for one of the largest background companies in the US. The plaintiff’s attorney asked me if the client could have seen a history of substance abuse and traffic accidents if they had just been willing to spend $60 for a background check. I had to answer yes, the client had access and in fact had ordered background checks and drug tests in the past. Unfortunately a supervisor at the client company shortcut the process and put a person to work without the required background check. The new employee then promptly got drunk on the job and ran a company truck into the back of a car. The HR manager was not aware that the process had not been followed until after the accident had happened.  The settlement reached with the injured parties was over a million dollars.  Lessons learned?

1) Standardize the process for obtaining and reviewing background checks and drug tests.  If possible use software that will automate and force compliance to company policy for not just background checking but for the complete hiring process.

2) Don’t be penny wise and pound foolish.  A background check and drug testing will cost in the range of $60 to $75 dollars if you use a third party. A very small investment to make sure you know exactly who you are hiring.

3) Use a third party provider (they have  expertise, and access to data you won’t have ) but select with care.  Understand how they obtain their data. Make sure they provide compliance assistance as there are a  number of regulations at the state and federal level that govern the use of drug testing and background checks in hiring.

4) Never establish a policy that states “we don’t hire anyone with a criminal record”.  In many states this would be considered discrimination.  Each background check must be reviewed against the actual job and factors such as time since the criminal act, age at the time of the act, efforts at rehibiliationa and the serious of the crime must be considered.  Employers can determine that it is not in their best interest to hire a person with a criminal record but must show that the decision was made fairly and without discrimination.  Providing a ranking using specific criteria is where  third party provider can really add value.
For more information on background checking go to http://www.kpaonline.com/hr/hr-management-system/background-checking-drug-testing.html  or http://tandemselect.com/

Join the conversation: Do you always obtain a background check and drug test on a new hire?

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The Lawsuits are Coming, Get Ready to Pay

Friday, April 22nd, 2011

  The Cleveland Plain Dealer reported that over 6,800 private-sector lawsuits were filed nationwide in 2010. The DOL (Department of Labor), handled about 32,000 wage and hour complaints in 2010, a jump of 33 percent in just two years.  The Equal Employment Opportunity Commission reports that pay and promotion cases are now the biggest category of employment discrimination filings but discrimination cases are also on the rise.  Broadly defined but complex new regulations on ADA (Americans with Disabilities) and GINA (Genetic Information Non Discrimination Act)  make it likely that even the best intentioned employer may inadvertently discriminate against an employee or applicant.

  Looking forward into the rest of 2011 and then on to  2012 employers should expect more new rules, with the DOL, ICE and IRS allocating more resources towards enforcement of those rules.  The DOL is planning to issue new rules on the Family Medical Leave Act and the Fair Labor Standards Act.  The National Labor Relations Board has proposed a new rule that, if adopted, would require almost all private-sector employer in the US to notify employees about their rights to unionize.

 The DOL has hired 250 new investigators and has launched the “We Can Help“ program that includes a website and bilingual public service ads designed find and correct the incorrect classification of exempt employees and other violations of wage and hour laws.  To “help” employees even more, on November 19, 2010, the U.S. Department of Labor announced a joint initiative with the American Bar Association to help employees find lawyers to enforce their rights under the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA). Since December 13, 2010, employees who bring FMLA or FLSA complaints that cannot be resolved by the Department of Labor have been given a toll-free telephone number to contact a newly created ABA-approved attorney referral system that will provide information about participating attorneys in their geographic area.  The U.S. Immigration and Customs Enforcement (ICE)  will continue to increase its investigations and raids on employers who hire illegal workers, over 1000 notices were issues in the first 4 months of 2011. Don’t forget the IRS, in 2011 the IRS will conduct over 6,000 payroll tax audits focusing on companies misclassifying workers as independent contractors, fringe benefits and executive/deferred compensation, as part of a new federal and state focus on the miscallification of workers as independent contractors. 

Complex regulations, increased enforcement and easy access to plaintiff’s attorney are creating the “perfect storm” for employment lawsuits.  Are your payroll and employment practices ready? If you don’t have EPL (Employment Practices Liability) coverage call your broker now.  Consider an independent audit of your HR practices. Use automation (software) to ensure consistent process and good documentation. Plus keep your attorney on speed dial, you probably will be calling  them more than ever.

Join the conversation:  Are you worried about employment lawsuits or audits in 2011?

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EEOC Issues Final Regulations for ADA Compliance

Wednesday, April 13th, 2011

Can you define what is a disability and who is covered under the ADA (Americans With Disabilities Act) and ADAAA (ADA Amendments Act of 2008) ?  The answer to this question of what is a disability  under the EEOC final regulations may surprise you.  Watch this short video to learn about the impact on employers when the Equal Employment Opportunity Commission (EEOC) final revised Americans with Disabilities Act regulations become effective on May 24, 2011.

 

 

 

 

 

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