- Establish a consistent process for execution of I-9 forms.
- On the first day of work, ensure that each new hire completes and signs Section 1.
- Review the employee’s documents and confirm that they are on the acceptable document list and look authentic (www.uscis.gov/i-9).
- While it is not required in all locations, making copies of all documentation provided is a good practice.
- Track the expiration of documents that limit the right to work and prepare a tickler system to follow up. Also, do not keep I-9 documentation in the personnel file.
- Retain I-9s and any supporting documents for the later of three years after hire or one year after termination.
The Wage and Hour Division of the Department of Labor issued an Administrator’s Interpretation on July 15, 2015. The Interpretation discusses the classification of independent contractors and employees. An Interpretation does not have the force of a regulation that has been subject to the procedures of notice and comment. However, the Interpretation is indicative of the stance that the DOL will likely take regarding employee and independent contractor classification. The Interpretation’s actual authority and ability to impact the classification of employees and independent contractors in litigation will be a source of future debate. It is an indication that misclassification continues to be a hot button topic for businesses paying workers.
Click here to see the recent update from Wilson Worley PC on the EEOC case involving the extent of an employer’s ability to set dress codes or “physical appearance” policies. The U.S. Supreme Court is expected to rule this summer.
Classification of workers has long caused confusion and been an area of concern for businesses. Because independent contractors work for themselves, they are not covered by tax and employment laws in their work for businesses. Because of the costs associated with employees and the labor and other legal requirements, employers are often tempted to label as many workers independent contractors as possible. Even consent by the worker or a written contract calling someone a contractor is not enough; instead, the law determines who is an employee.
It is a good idea to review job responsibilities and control exerted over your workers from time to time to ensure compliance. Worker misclassification is an area of emphasis at this time for many state and federal enforcement agencies. Much better to review your own workers than to have the IRS do it for you after you have issued 1099s for several years.
Specifically, descriptions are important under the ADA as well. They provide a framework to review whether an applicant with a disability is otherwise qualified to perform the job. They, then, allow the employer to consider what accommodations would be necessary for the applicant to handle the essential functions of the job. That, in turn, leads to clarity on whether accommodation would be reasonable.
The ADA has no express requirement to adopt job descriptions; however, the law requires that applicants and employees be capable of performing the essential functions of the position, with or without reasonable accommodation. When defining essential job functions, the EEOC reviews job descriptions written before an employer advertises a job opening. Thus, employers should be accurate in reflecting those essential functions, and generic wording does not provide sufficient detail when questions arise. Describing the specific tasks that a position requires allows for compliance with ADA and EEOC guidelines and a basis to defend your actions if you are questioned.
The White House announced some time ago that President Obama would sign an executive order that prohibits discrimination against gay and transgender workers who work for the federal government, its contracting agencies, and federal contractors. That order become official today.
Several state and local governments have already adopted similar protections. Estimates are that the federal changes will affect nearly twenty-five thousand companies and touch approximately twenty percent of all workers in the U.S. The signing comes after the Employment Non-Discrimination Act, commonly referred to as ENDA, again failed to move forward in the U.S. House.
The signing served to amend prior executive orders that prohibited discrimination against federal workers and federal contract workers on the basis of race, nationality, gender, and religion. The DOL is tasked with enforcement.
Job descriptions are important. They are not specifically required by law or regulation. However, the essential functions of a job must be considered in many contexts such as questions involving disability status or leave.
Job descriptions allow the employer to clarify what responsibility an employee has within the business and how the employee is expected to operate. This information matters from the first interview through the end of employment. Descriptions allow the employer to define relationships and obligations between co-workers and departments or divisions. They can set out educational, training, and skills requirements. They can also be the first place an employer looks to consider coaching, counseling, or evaluation. This information helps the employer evaluate performance for different positions too. Likewise, descriptions tell employees what is expected and serve as a form of communication to outline accountability.
The Employment Non-Discrimination Act (ENDA) is proposed federal legislation to prohibit discrimination in hiring and employment decisions on the basis of sexual orientation or gender identity by businesses with 15 or more employees.
The bill prohibits preferential treatment and quotas but does not permit disparate impact suits. It also exempts religious organizations and the military. ENDA has been introduced in the United States Congress on numerous occasions since 1994.
The Senate voted 64 to 32 to pass the most recent version. ENDA is unlikely to pass the House.
I wrote last summer about issues involving volunteer interns; it’s that time of year again to consider your practices involving interns. With more and more students and job seekers who need resume-building opportunities, there are many requests to job shadow or obtain unpaid work experience. Employers must use care to avoid running afoul of wage and hour laws.
The DOL has listed several factors in reviewing whether the FLSA is implicated, including if the internship is similar to educational training, is really for the benefit of the intern, does not displace regular employees, and offers no immediate advantage to the employer. Based on the factors, most interns should be paid for work they perform.
The complete DOL fact sheet is available here: Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act.