HR: Industry Updates

Don’t Miss Tomorrow’s Webinar: California HR Legislative Update

Wednesday, February 1st, 2012

Catch-up on new regulations around employment law that went into effect in 2011, and get a heads-up on the most relevant regulations and legislative trends to watch in 2012. This webinar is presented by John Boggs, the nationally recognized labor and employment attorney and outside counsel to the California New Car Dealer Association.

Specific topics include:

  • Use of Credit Reports for Employment Screening (AB 22)
  • “ Wage Theft” and New Required Disclosures (AB 469)
  • Commission Agreements (AB 1396)
  • Gender Identity Discrimination (SB 887)
  • Independent Contract Misclassification (SB 459)

The presentation will be especially relevant to California, although some national trends will be discussed.

This webinar is scheduled for 9:00 am Pacific time.

 

Learn more and register at this link.

http://go.kpaonline.com/LP=102?elqCampaignId=189s

Employee Rights Posting Postponed Yet Again- Now Required by April 30, 2012

Wednesday, January 18th, 2012

For the second time, the National Labor Relations Board (NLRB) postponed the effective date for posting its employee rights notice. The new date is April 30, 2012. Most private-sector employers including dealerships must post a new notice issued by the NLRB entitled, “Employee Rights Under the National Labor Relations Act.” The poster informs employees of their rights to organize a union, bargain collectively through representatives chosen by the employees and to make efforts to improve the terms and conditions of their employment. The poster requirement was initially scheduled for implementation on November 14, 2011, but was delayed until January 31, 2012, as a result of litigation filed by various organizations.  On December 23, 2011, the NLRB said it would delay implementation to April 30, 2012, in response to a request by a federal court judge hearing  a legal challenge to the poster requirement. However, because this issue remains in litigation, there is a chance that this posting deadline will be delayed at least one more time. Employers who have already posted the notice may take it down or leave it up as they chose at this point.

It is not uncommon for a federal or state agency to  make a rule and then have it challenged in court or even to have the agency delays to seek further comment and clarification.  The Red Flags Rule is a perfect example of multiple delays before the final implementation date was settled on.

If you would like a copy of the proposed Employee Rights Notice go to https://www.nlrb.gov/poster.  KPA’s HR Management clients will find the notice in the “Toolkit Section”.

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

 

Pros and Cons of Using Credit Reports for Hiring Decisions

Thursday, December 8th, 2011

Background checking (including a drug test) is an important step in the hiring process. Background checking is more about the knowledge you gain to make the right hiring decision rather than “exclusion” based on the results. Employers need to be aware of the legal restriction of using certain information in the hiring process. For example in many states you should not be ordering or using the results of a credit report except in very limited circumstance. This short video discusses the pros and cons of credit reports in the hiring process.

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.

 

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

2012 Pension Plan Limitations

Monday, November 21st, 2011

The Internal Revenue Service has announced cost of living adjustments affecting dollar limitations for pension plans and other retirement-related items for Tax Year 2012. In general, many of the pension plan limitations will change for 2012 because the increase in the cost-of-living index met the statutory thresholds that trigger their adjustment. However, other limitations will remain unchanged.

Summary:

 

The elective deferral (contribution) limit for employees who participate in 401(k), 403(b), most 457 plans, and the federal government’s Thrift Savings Plan is increased from $16,500 to $17,000.

•The catch-up contribution limit for those aged 50 and over remains unchanged at $5,500.

•The deduction for taxpayers making contributions to a traditional IRA is phased out for singles and heads of household who are covered by a workplace retirement plan and have modified adjusted gross incomes (AGI) between $58,000 and $68,000, up from $56,000 and $66,000 in 2011. For married couples filing jointly, in which the spouse who makes the IRA contribution is covered by a workplace retirement plan, the income phase-out range is $92,000 to $112,000, up from $90,000 to $110,000. For an IRA contributor who is not covered by a workplace retirement plan and is married to someone who is covered, the deduction is phased out if the couple’s income is between $173,000 and $183,000, up from $169,000 and $179,000.

•The AGI phase-out range for taxpayers making contributions to a Roth IRA is $173,000 to $183,000 for married couples filing jointly, up from $169,000 to $179,000 in 2011. For singles and heads of household, the income phase-out range is $110,000 to $125,000, up from $107,000 to $122,000. For a married individual filing a separate return who is covered by a retirement plan at work, the phase-out range remains $0 to $10,000.

•The AGI limit for the saver’s credit (also known as the retirement savings contributions credit) for low-and moderate-income workers is $57,500 for married couples filing jointly, up from $56,500 in 2011; $43,125 for heads of household, up from $42,375; and $28,750 for married individuals filing separately and for singles, up from $28,250.

 The limitation on the annual benefit under a defined benefit plan under section 415(b)(1)(A) is increased from $195,000 to $200,000.

The limitation for defined contribution plans under Section 415(c)(1)(A) is increased in 2012 from $49,000 to $50,000.

The limitation under Section 402(g)(1) on the exclusion for elective deferrals described in Section 402(g)(3) is increased from $16,500 to $17,000.

The annual compensation limit under Sections 401(a)(17), 404(l), 408(k)(3)(C), and 408(k)(6)(D)(ii) is increased from $245,000 to $250,000.

The dollar limitation under Section 416(i)(1)(A)(i) concerning the definition of key employee in a top-heavy plan is increased from $160,000 to $165,000.

The dollar amount under Section 409(o)(1)(C)(ii) for determining the maximum account balance in an employee stock ownership plan subject to a 5 year distribution period is increased from $985,000 to $1,015,000, while the dollar amount used to determine the lengthening of the 5 year distribution period is increased from $195,000 to $200,000.

The limitation used in the definition of highly compensated employee under Section 414(q)(1)(B) is increased from $110,000 to $115,000.

The dollar limitation under Section 414(v)(2)(B)(i) for catch-up contributions to an applicable employer plan other than a plan described in Section 401(k)(11) or Section 408(p) for individuals aged 50 or over remains unchanged at $5,500. The dollar limitation under Section 414(v)(2)(B)(ii) for catch-up contributions to an applicable employer plan described in Section 401(k)(11) or Section 408(p) for individuals aged 50 or over remains unchanged at $2,500.

The annual compensation limitation under Section 401(a)(17) for eligible participants in certain governmental plans that, under the plan as in effect on July 1, 1993, allowed cost of living adjustments to the compensation limitation under the plan under Section 401(a)(17) to be taken into account, is increased from $360,000 to $375,000.

The compensation amount under Section 408(k)(2)(C) regarding simplified employee pensions (SEPs) remains unchanged at $550.

The limitation under Section 408(p)(2)(E) regarding SIMPLE retirement accounts remains unchanged at $11,500.

The limitation on deferrals under Section 457(e)(15) concerning deferred compensation plans of state and local governments and tax-exempt organizations is increased from $16,500 to $17,000.

The compensation amounts under Section 1.61 21(f)(5)(i) of the Income Tax Regulations concerning the definition of “control employee” for fringe benefit valuation purposes is increased from $95,000 to $100,000. The compensation amount under Section 1.61 21(f)(5)(iii) is increased from $195,000 to $205,000.

The adjusted gross income limitation under Section 25B(b)(1)(A) for determining the retirement savings contribution credit for married taxpayers filing a joint return is increased from $34,000 to $34,500; the limitation under Section 25B(b)(1)(B) is increased from $36,500 to $37,500; and the limitation under Sections 25B(b)(1)(C) and 25B(b)(1)(D), is increased from $56,500 to $57,500.

The adjusted gross income limitation under Section 25B(b)(1)(A) for determining the retirement savings contribution credit for taxpayers filing as head of household is increased from $25,500 to $25,875; the limitation under Section 25B(b)(1)(B) is increased from $27,375 to $28,125; and the limitation under Sections 25B(b)(1)(C) and 25B(b)(1)(D), is increased from $42,375 to $43,125.

The adjusted gross income limitation under Section 25B(b)(1)(A) for determining the retirement savings contribution credit for all other taxpayers is increased from $17,000 to $17,250; the limitation under Section 25B(b)(1)(B) is increased from $18,250 to $18,750; and the limitation under Sections 25B(b)(1)(C) and 25B(b)(1)(D), is increased from $28,250 to $28,750.

The deductible amount under § 219(b)(5)(A) for an individual making qualified retirement contributions remains unchanged at $5,000.

The applicable dollar amount under Section 219(g)(3)(B)(i) for determining the deductible amount of an IRA contribution for taxpayers who are active participants filing a joint return or as a qualifying widow(er) is increased from $90,000 to $92,000. The applicable dollar amount under Section 219(g)(3)(B)(ii) for all other taxpayers (other than married taxpayers filing separate returns) is increased from $56,000 to $58,000. The applicable dollar amount under Section 219(g)(7)(A) for a taxpayer who is not an active participant but whose spouse is an active participant is increased from $169,000 to $173,000.

The adjusted gross income limitation under Section 408A(c)(3)(C)(ii)(I) for determining the maximum Roth IRA contribution for married taxpayers filing a joint return or for taxpayers filing as a qualifying widow(er) is increased from $169,000 to $173,000. The adjusted gross income limitation under Section 408A(c)(3)(C)(ii)(II) for all other taxpayers (other than married taxpayers filing separate returns) is increased from $107,000 to $110,000.

The dollar amount under Section 430(c)(7)(D)(i)(II) used to determine excess employee compensation with respect to a single-employer defined benefit pension plan for which the special election under section 430(c)(2)(D) has been made is increased from $1,014,000 to $1,039,000.

Internal Revenue Service. (2011). IRS Announces Pension Plan Limitations for 2012 (IR-2011-103, Oct 20, 2011) Washington, DC: .http://www.irs.gov/newsroom/article/0,,id=248482,00.html

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

Sexual Harassment Is No Joke

Friday, November 4th, 2011

Sexual harassment continues to be  a very costly issue in the workplace.   The most recent high-profile incidents involve presidential candidate Herman Cain.  While  CEO of the National Restaurant Association, Cain was accused of harassment and the association provided monetary settlements to several women.   Mr. Cain remarked that “I do have a sense of humor, and some people have a problem with that,”  after the harassment allegations first surfaced, explaining how his actions may have been misconstrued.   All kidding aside, sexual harassment is no joke.  Resolving sexual harassment claims is expensive. Beyond attorney fees and settlement costs, harassment impacts morale and productivity, damages your company’s brand and reputation and limits your ability to hire and retain employees.

It is more cost-effective to take a proactive approach and prevent sexual harassment rather than settle claims.  Watch this 3 minutue video to learn the three steps every business should be taking to prevent sexual harassment in the workplace.

Planning a Trunk or Treat Event? Don’t Forget the Dress Code.

Friday, October 28th, 2011

If your dealership is gearing up for a Spooky Savings event complete with candy, costumes, and lots of customers, take a moment before the party starts to remind employees that Halloween can be a lot of fun, but this is still a work environment. Here are a few tips from an HR perspective to make the event a big success:

1.    Make sure costume guidelines fit with the company dress code and culture. The workplace is not an appropriate venue for suggestive or provocative costumes. Sexual harassment happens in many ways, including visual exposure, which means that it is a good policy to review dress code before any festive company sponsored event, including Halloween work parties (you can read about a sexual harassment case involving inappropriate costumes here).

2.    For Halloween-themed company events, costumes and attendance should always be optional.
Not everyone celebrates Halloween, and some people are offended by the implications of All Hallows’ Eve. While every company has its culture, not everyone is comfortable dressing up in silly costumes. It is important to be respectful of employees and their differences in perspectives.

3.     Most importantly, remind everyone that they are still at work and they have to act professionally. This tip is from Integrity HR:

Employers also need to be aware that Halloween celebrations may raise legal considerations. For example, allowing decorations that some employees find offensive could be construed as contributing to a hostile work environment.

Other legal concerns include workplace violence concerns, “cyber harassment,” and religious accommodation. Of course, it is understood that alcoholic consumption in any context is not tolerated at the workplace.

Remember, the primary function of a Spooky Savings Event is to sell cars. If the event also builds teamwork, and provides an outlet for creativity and a break from the routine… then that is the signature of a successful event from the human resources perspective.

 

What do you think? Are Halloween Sales events worth it? What is the best, or worst outcome you’ve experienced from a Holiday themed sales event?