Archive for January 2012

New York: Wage Theft Prevention Act becomes Effective February 1st

Employers, are you prepared to comply with the Wage Theft Prevention Act? The New York Wage Theft Prevention Act outlines an employer’s responsibility to communicate an employee’s terms of employment in a written notice. Effective February 1, 2012, employers must present the written notice to employees at the time of hire and annually thereafter (on or before February 1st of each subsequent year).

The written notice should include:

  • The employee’s rate(s) of pay;
  • The basis of the employee’s rate(s) of pay (e.g., by the hour, shift, day, week, salary, piece, commission, or other);
  • Whether the employer intends to claim allowances as part of the minimum wage, including tip, meal, or lodging allowances, and the amount of those allowances;
  • The employee’s regular pay day designated by the employer in accordance with the frequency of pay requirements in New York Labor Law Section 191;
  • The name of the employer and any “doing business as” names used by the employer;
  • The physical address of the employer’s main office or principal place of business, and a mailing address if different; and
  • The telephone number of the employer.

Employers can notify employees in writing within seven calendar days if any of the information above changes, through a new written notice or modified paycheck stub.

The written notice can be in English and in any other language primarily spoken by the employees. The New York Deportment of Labor (NYDOL) offers translations of the notice in Chinese, Haitian Creole, Korean, Polish, Russian and Spanish (online). Additionally, the Act allows employers to distribute the notice electronically, if the employer can confirm that the employee will receive the notice along with the acknowledgement form and the employee can print a copy of the notice for their records.

Employers must obtain a signed and dated acknowledgement of the notice for each employee. If the employee refuses to acknowledge the notice, the employer is advised to note the employee’s refusal to sign. Copies of the notice and accompanying acknowledgement must be retained for six years to serve as documentation upon request of the NYDOL.

Fines: Failure to provide the notice within ten (10) business days of a new employee’s starting date could potentially result in costly litigation, where the employee can recover $50 for each work week, with up to a maximum of $2,500 along with attorney’s fees and cost.

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Limit your Liability: I-9 Compliance Best Practices

Employers, are you in compliance with I-9 requirements? In the 2011 fiscal year, the Immigration and Customs Enforcement (ICE) issued a record 2,393 notices of inspections (for federal Form I-9 and supporting documents), a more than 375% increase from FY2008. Additionally, during FY2011, ICE issued 331 final administrative fine orders, totaling more than $9 million in fines levied on employers (compared to 18 final orders in FY2008, totaling $675,000 in fines).

The increase in investigations and fines demonstrates ICE’s intent to ensure employers comply with I-9 requirements. According to the U.S. Citizenship and Immigration Services, all employers must complete and retain a Form I-9 for each individual employed in the United States. Form I-9 must be completed within three days of the new hire’s employment. On the I-9 form, employers must confirm the employee’s employment eligibility and authenticity of  the employee’s identification document(s). If there is not an employer representative available to review the authenticity of the original documents and to sign the I-9 form, these documents must be presented to a Public Notary  for certification.

Best Practices

Companies should assess the current state of I-9 documents to ensure compliance and minimize exposure to audits.

1. Conduct a voluntary audit of I-9 forms currently on file – By reviewing I-9s for errors, corrections can be made legally. The audit can bring common errors to light so that training can be implemented to correct these issues.

2. Prepare an I-9 process – Develop a written policy and process to maintain I-9 compliance. The USCIS I-9 Employer Handbook provides great resources  including information on:

  • The appropriate action to take when an employee fails to present documentation in a timely manner.
  • What to do when the Company is notified of a Social Security mismatch.

3.  Appoint a final reviewer – Assign one person to view I-9 documents before they are processed. If there is an error, the person who signed off on Section 2 of the form must correct the mistakes or provide any missing information or documentation.

4. Make note of common errors – According to ICE, the most common errors found during an I-9 audit are:

  • A Form I-9 was not completed for an employee;
  • Employee citizenship or employment eligibility attestation is not completed in Section 1 of the form;
  • Employee’s signature is missing in Section 1 of the form;
  • Employer or its authorized representative has failed to complete Section 2 of the form verifying employment and identity documents; and
  • Employer’s signature is missing in Section 2 of the form.

Posting the 2011 OSHA Summary

Employers, it is almost that time of year again; are you prepared to post your 2011 OSHA Summary on February 1st?

According to Occupational Safety and Health Administration (OSHA) Recordkeeping Guidelines, a current OSHA Summary (not the OSHA 300 Log) must be posted in your workplace location(s) annually by February 1ST until April 30th. The Summary, Form 300-A, must be posted in a visible location accessible to all employees in each establishment or site. Form 300-A reports the total number of job-related injuries and illnesses, number of deaths, missed workdays and job transfers or restrictions that occurred in the previous year. Companies with no recordable injuries or illnesses in 2011 must post the form with zeros on the total line.

 Employer’s Responsibilities Regarding the Annual Summary

  • Posting: The Annual Summary (Form 300-A) must be posted in an area where it cannot be altered, defaced or covered by other material. Employers can also distribute copies of the summary to employees who move from worksite to worksite, such as construction workers and employees who do not report to a fixed location on a regular basis.
  • Certification: Prior to posting, the Annual Summary must be reviewed by a company executive certifying that he or she has examined the report and has reasonable belief that the Annual Summary is correct and complete, based on his or her knowledge of how the information was recorded. OSHA implements the “senior management accountability” requirement to ensure the integrity and accuracy of the report. Four specific management positions are identified to serve as “company executive” for purposes of certifying the Annual Summary.
    • An owner of the company;
    • An officer of the corporation;
    • The highest ranking company official working at the establishment; or
    • The immediate supervisor of the highest ranking company official working at the establishment.

Employer’s Responsibilities regarding OSHA Reports

  • Retention: Employers must save the OSHA 300 Log, the annual summary and the OSHA 301 Forms or the equivalent SCI form #1020-Incident Investigation Report form for five (5) years following the end of the calendar year that these records cover.
    • OSHA Part 1904: When an authorized government representative asks for the records kept under OSHA Part 1904, Employers must provide copies of the records within four (4) business hours. The government representatives authorized to receive the records are:
      • A representative of the Secretary of Labor conducting an inspection or investigation under the Act;
      • A representative of the Secretary of Health and Human Services (including the National Institute for Occupational Safety and Health – NIOSH) conducting an investigation under section 20(b) of the Act; and/or
        • A representative of a State agency responsible for administering a State plan approved by OSHA.

DOT Prohibits the Use of Hand-Held Cellular Devices for CMV Drivers

The Department of Transportation (DOT) published a Final Rule restricting the use of hand-held mobile phones for drivers of Commercial Motor Vehicles (CMV). Effective January 2012, CMV (as defined in Part 390) drivers – are prohibited from using hand–held mobile devices while driving. This rule prohibits all push-to–talk functional phones, but hand–free devices such as mobile phones with a speaker phone option and one-touch dialing are permissible.

The Rule also prohibits Motor Carriers (employers) from allowing or requiring drivers to use a hand-held mobile device while driving. The employer is held responsible for employee violations if the employee is acting on behalf of the employer and/or under the employer’s direction.

 The Federal Motor Carrier Safety Administration (FMCSA) and DOT Pipeline and Hazardous Materials Safety Administration (PHMSA) proposed this Rule to reduce accidents on national highways caused by distracted CMV drivers. Prior to the creation of the final Rule, the FMCSA banned the use of text messaging by commercial truck and bus drivers in September 2010. The PHMSA followed with its own ruling in February 2011 to ban the use of text messaging by intrastate hazardous materials drivers. The agencies developed a joint-initiative to ban hand-held mobile devices based on research from the FMCSA indicating commercial drivers using hand-held cell phones are more at risk for crashes than drivers using hand-free devices.

 The research indicated commercial drivers reaching for objects such as cellular devices are three times more likely to be involved in a crash or other accidental event; and commercial drivers using the dialing feature on cell phones are six times more likely to be involved in a crash or other accidental event.

Penalties: Commercial drivers found using hand-held cellular devices are subject to federal civil penalties of up to $2,750 for each offense and disqualification from operating a motor vehicle for multiple offenses. Motor Carriers who violate cell phone restriction laws can face civil penalties totaling up to $11,000.

Exceptions to the rule include usage of hand-held phones in case of emergencies and contacting law enforcement. Drivers may also use a hand- held device when the vehicle is moved to the side or off the highway and halted in a location where it can remain stationary.

What do you think about this regulation? How do you think it will impact your business?