|
Archive for September, 2010
Thursday, September 30th, 2010
Since President Obama took office, the Administration has changed the way the federal government polices and investigates illegal immigrants on the job. Rather than hunting for illegal workers, the Immigration Customs Enforcement (or ICE) targets employers, i.e., restaurants, construction companies, agriculture businesses and other “usual suspects” where illegal immigrants might find employment. The Administration argues that this practice serves to deprive illegals looking for work in the United States a market for their services.
So, rather than raiding workplaces and arresting workers, ICE conducts “silent raids, ” i.e., audits conducted by ICE agents who review computer files and study I-9 employment eligibility forms. When agents discover issues, they notify the employer. The employer then must discharge workers with false identification.
Sometimes ICE does more than merely “notify,” however, as its enforcement activity has increased substantially, as has its collections of fines. In 2010, ICE has commenced over 2,600 investigations of employers, triple the number from before the Obama Administration. ICE has arrested 170 employers this year and issued more than $5 million in fines related to I-9 inspections.
ICE claims it targets “egregious employers” who make it a business practice to hire undocumented workers. But one person’s percieved “business practice” may be another’s innocent bad luck. Those fines from ICE come from employers who may be crippled by this new enforcement strategy. That said, the threat of raids should serve to provide substantial warning to those who may rather turn a blind eye to potential immigration issues in their work place.
Be sure to follow I9 requirements while also not practicing unlawful “document” discrimination against lawful foreign workers. The employer should not take discriminatory short cuts to avoid ICE audits, but it also should not simply “see no evil” when applicants provide suspicious documentation. Compliance with the I9 procedure is key, and the websites at ICE and the DOL, as well as counsel, can provide critical guidance on how to navigate the Scylla and Caribdis of ICE and Title VII.
Posted in Industry News, Restaurant Liability | No Comments »
Thursday, September 23rd, 2010
Several provisions of the new health care law (the Patient Protection and Affordable Care Act) passed by Congress earlier this year become effective “today” The following changes apply to all health care insurance plans (individual and employer-sponsored) purchased or renewed after today:
Extension of coverage for young adults: Young adults who do not receive insurance through their employer can stay on their parents’ insurance plans until they are 26 years old.
No denials for children: Insurance companies cannot deny coverage to children with pre-existing health conditions.
No lifetime caps: Insurance companies cannot impose lifetime dollar limits in their plans on benefits such as hospitalizations and emergency care.
Facilitation of appeals: Insurance companies are required to make it easier for consumers to appeal the denial of coverage or specific benefits.
No dropping of coverage: Insurance companies can no longer drop someone’s coverage except in cases of fraud.
Additional changes apply to individual plans purchased after today and to employer-sponsored plans that are significantly changed after an employer’s next renewal period:
No co-pays/deductibles for preventive care: No co-pays or deductibles are allowed for services such as flu shots, mammograms, blood pressure, cholesterol and diabetes testing, some cancer screenings, health counseling, and routine vaccinations.
No co-pays for care for children: No co-pays are allowed for regular baby check-ups and annual examinations until children are 21 years old. “Covered” services include vision and hearing screenings, blood tests, health counseling, and vaccinations.
No co-pays for pregnancy care: Certain pregnancy services will not require a co-pay, including screenings for iron deficiency, hepatitis B, some pregnancy-related conditions, and counseling on breastfeeding and stopping the use of tobacco or alcohol.
Rate increases: Insurance companies must publicize and justify any increase in monthly premiums.
Tags: health care, health care law, health care reform
Posted in Industry News | No Comments »
Thursday, September 16th, 2010
New federal gift card legislation involving the sale of pre-paid gift cards and incentive offers went into effect last month. (The federal legislation was adopted earlier this year.) “It places limits on expiration dates and dormancy fees and affects gift cards sold or issued on or after August 22.”
In recent years, consumers have raised concerns about gift cards, which remain popular, and this legislation is designed to address those concerns.
Under the new gift card legislation, gift cards must be good for at least five years from their purchase date. “Any money added to the card later must also be good for at least five years.” Consumers may also be able to use the money on a card they did not spend even after it expires. “For example, if the card expires in five years, and the money left on the card does not expire for seven years, consumers can request a replacement card at no additional cost.”
The new gift card rules also place limits on fees for dormancy or inactivity and fees for usage or maintenance. “Usually, companies can charge fees if the card has been inactive for at least 12 months, but they can charge a fee only once per month after that.”
In addition, restaurants are allowed to charge fees for replacing a lost or stolen card, but they must disclose the card fees and expiration dates clearly on the card or “packaging.” The new rules, however, do not specify how such disclosures must be made.
Despite the new “gift card” legislation, many retailers and restaurants have already implemented many these new “gift card rules.” They have, for example, eliminated expiration dates and dormancy fees. “One element that will likely, change, however, is how gift cards are packaged.” Terms and conditions must clearly be visible, and retailers and restaurants should probably state the same terms and conditions on their websites.
Although the new legislation does not apply to some re-loadable pre-paid cards that are not intended or marketed as gifts, companies should be careful about marketing the card as a gift (i.e., no pictures of a bow or some other wrapping on the card).”If a company does any marketing that can be construed as projecting the card as a gift, the entire company’s cards would lose their exemption and, thus, have to comply with the new gift card rules.”
Other cards that the legislation does not cover are cards given as a reward or part of a promotion (e.g., a $15 gift card given by a retailer in exchange for a $100 purchase). “Such cards can have fees and an expiration date of one year instead of five.” Nevertheless, companies must still clearly disclose the terms and conditions of the card.”
Cards that offer a free meal or a percentage off the next visit are also not covered, but they cannot mention a “specific value.”
One thing companies should also keep in mind is to continue to observe state laws regarding gift cards. “The new gift card legislation does not pre-empt state or local laws if those laws provide even more protections.”
Tags: gift card laws, gift card legislation, gift card legislation 2010
Posted in Industry News | No Comments »
Wednesday, September 8th, 2010
Massachusetts recently enacted an important change for employers regarding their duties concerning the maintenance of personnel records. The law, passed just days ago, is effective retroactively to August 1.
Bottom line, the new law modifies the state Personnel Records Statute. That statute formerly required the employer simply to provide a copy of a personnel file to an employee requesting to inspect his or her file in writing and to allow employees to make responsive comments to statements contained therein. The new law now requires employers to notify an employee within 10 days of when negative information is entered into his or her personnel record and to allow employees to inspect their files upon notice of such information.
The definition of “personnel records” is broadly defined under Massachusetts law. The definition expressly covers any record that has or may affect the employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.
So, any time an employer places negative information in an employee’s personnel file that can be used to make a decision affecting the employee’s qualification for employment, promotion, transfer, additional compensation, or disciplinary action, the employer must now tell the employee about such information within 10 days of it being placed in the personnel file. In addition, employers, must allow employees to inspect their personnel records each time such notification is provided.
HR professionals generally argue that best practice calls for providing notice to employees regarding negative information such as performance reviews or disciplinary notices, etc. Indeed, in the past, putting negative information in an employee’s personnel file without giving notice to the employee would have provided the employer with marginal if any benefit at all in the event of litigation. The credibility of any negative information is generally suspect if it is included without notice to the employee.
That said, one wonders if the new requirement might encourage some employers, whether lawfully or not, to keep a “shadow file” in addition to the personnel file for working use until they develop more formal documentation for submission to the personnel file and for notice to the employee. Such “shadow” files, or notes to the file without notice to the employee, can often backfire against the employer in litigation and now may well be unlawful if used when making employment decisions.
The law essentially tries to enact best practices. Whether it will encourage poor practice remains to be seen. In the meantime, employers should balance the risks of violation against the increased workload of stringent compliance. Among other things, violations of the new law can result in fines between $500 and $2,500.
Posted in Industry News | No Comments »
|
