Latest Postings

On May 20, 2010, the Department of Labor (DOL) published a Final Rule in the Federal Register expanding the list of hazardous occupations (HOs) prohibited to youths 14 to 17 years of age.

The rule builds on and amends the nonagricultural occupational standards for youths covered in the landmark Fair Labor Standards Act (FLSA) of 1938.

Included in new occupations prohibited for youth under 18 are the following: work at poultry-slaughtering and packaging plants and in forest firefighting, forestry services, and timber tract management; riding on a forklift as a passenger; operating selected power-driven hoists and other similar vehicles; operating balers and compacters designed or used for nonpaper goods; and operating power-driven chain saws, wood chippers, reciprocating saws and abrasive cutting discs.

Additionally, the Final Rule contains several regulations that expand the opportunity of 14- and 15-year-olds to obtain employment in the workforce and creates a new category of safe jobs.

Specifically, Regulation 3, §570.3 and §570.34 removes a 40-year restriction to limit the employment of 14- and 15-year-olds to jobs in the retail, food services, and gasoline service stations. The new regulations allow 14- and 15-year olds to perform safe tasks in other industries. Under Regulation §570.34(b), 14- and 15-year olds can hold jobs of an intellectual or artistic nature that would include computer programming, drawing, and teaching.

Personnel Concepts will continue to monitor all changes in federal and state labor law and advise you of new compliance standards such as this one.

Under terms of the Genetic Information Nondiscrimination Act (GINA), employment decisions cannot be  based on a person’s genetic information or family history of genetic markers in disease and disability.

The law went into effect Nov. 21, 2009, and already the Equal Employment Opportunity Commission (EEOC) has received 80-plus complaint filings–and this despite the fact that GINA regulations are still forthcoming.

A Connecticut woman named Pamela Fink illustrates how a GINA claim can develop.

Ms. Fink claims she received positive performance reviews just prior to testing positive for the breast cancer gene. By the time she had gotten a preventive double mastectomy and returned to work, her supervisors had begun diminishing her workload and giving her negative performance evaluations. That was in the fall and winter of 2009. She was terminated and her position eliminated this March.

Her case is now before the EEOC.

Employers, be prepared to observe the letter and spirit of GINA, or you could end up in costly regulatory and legal proceedings like this Connecticut firm. Get a copy of Personnel Concepts’ Genetic Information Nondiscrimination Compliance Kit today and put the proper policies and procedures in place.

The Occupational Safety and Health Administration (OSHA), headed by David Michaels, is flexing its muscles all around, increasing fines, adding field inspectors, and now strengthening its whistleblower program by adding 25 agents to the 87 it already has.

In making the announcement, Michaels lamented the high dismissal rate of whistleblower claims (63 percent) and noted that "institutional barriers stand between whistleblowers and justice." He said he couldn’t believe that two-thirds of all claims are without merit.

Michaels ordered a "top-to-bottom review" of OSHA’s whistleblower program and vowed to work toward removing institutional barriers. As an example, he cited company policies that reward workers for no accidents as instead suppressing accident reports through peer pressure. He said he considers such practices a violation of OSH Act Section 11c.

For a better look at OSHA requirements, order a copy of The OSHA Answer Book today.

Beating the deadline of June 21, 2010, the Department of Health and Human Services (HHS) has released regulations to commence the Early Retiree Reinsurance Program on June 1 as mandated by the Patient Protection and Affordable Care Act (PPACA).

The program will reimburse employers who provide health insurance for retirees between the ages of 55 and 65 (in other words, for early retirees not yet eligible for Medicare) between now and Jan. 1, 2014, when the state-run health insurance exchanges will provide services for these people.

PPACA earmarked $5 billion for the program’s operation through the end of 2013 (which may prove to be vastly insufficient) and will reimburse any health plan, even those that are self-insured, that covers early retirees.

Employers, stay abreast of your rights and obligations under federal health insurance-related laws and regulations by visiting our HIPAA-COBRA section and checking out our array of fine references, posters and compliance kits that are available.

The Department of Health and Human Services (HHS) has released rules for the health reform measure that allows parents to keep dependents on their health insurance through age 25, which takes effect Sept. 23.

The rules mandate that pricing for dependents of any age be the same, though it sets no limits on the pricing. Some 65 insurers have agreed to implement the provision in June in advance of the mandated effective date. Employers who self-insure their employees will mostly wait until the effective date, analysts say.

"What we’re hearing from most of our members is they’re likely to apply this change … to the next plan year and do them all at the same time," Paul Dennett, a senior vice president at the American Benefits Council, a trade group representing employers and plan administrators who provide benefits for 100 million Americans, told the Wall Street Journal.

So far, none of his group’s members have informed him that they plan to implement the provision before they are required.

Employers who offer health insurance should also keep abreast of the rapid changes in the Health Insurance Portability and Accountability (HIPAA) privacy and security provisions, as well as changes to post-employment health care coverage under COBRA (Consolidated Omnibus Budget Reconciliation Act). Visit our HIPAA-COBRA compliance section today.

There are some cautionary tales and lessons in the strange case of Huping Zhou, 47, who once worked for the UCLA Health System–until he was fired for poor performance–and who now finds himself facing hard time for HIPAA privacy violations.

Here’s where it gets strange for both UCLA and the Chinese surgeon.

First, UCLA gave Zhou advance notice that he was going to be let go based on performance issues. Second, Zhou then decided it was time to snoop on his administrators’ and coworkers’ medical files. Third, he didn’t stop there, and soon he was copping looks at celebrity health records. When he was done, he had accessed patient records 323 times, all in violation of the privacy rule of the Health Insurance Portability and Accountability Act (HIPAA).

A couple of weeks back, circumstances caught up with Zhou, and the long arm of the law sentenced him to four months in a federal prison for his illegal prying. Zhou thus becomes the first person ever to serve time for HIPAA violations, according to the U.S. Attorney’s Office for the Central District of California.

The lesson for Zhou, of course, is work hard and don’t break the law, and for UCLA it’s "don’t telegraph termination notices." Do it on the spot (with proper record-keeping and justification, of course).

Employers who offer health insurance to their workforces and who thus handle any type of private health-related information are also subject to the HIPAA privacy and security rules. For tools to help you understand and apply these rules, please visit the Personnel Concepts’ Web section on HIPAA & COBRA Compliance.

If you find yourself reclassifying your employees as non-exempt (from previously being exempt), then you could end up in deep legal doo-doo like the Michigan Bell Telephone Company.

Reason? It doesn’t take employees long to figure out that, if they’re doing the same jobs as exempt as when they were non-exempt, then they were probably cheated out of overtime prior to the reclassification.

Voila–Wlotkowski et al. v. Michigan Bell Telephone Company, filed in the Eastern District of Michigan.

Now, Michigan Bell probably did the right thing in realizing the class-action-lawsuit workers were non-exempt, but when it did so, it should also have dealt with the back-overtime-pay issue. Since the company decided to brush that under the rug, it ended up being sued.

There are a couple of lessons here. One is that it’s important to do workforce classification audits, especially with the Department of Labor breathing down employers’ throats to classify (and pay) properly. The other is that, when you do reclassify employees as non-exempt, you must right away square the back-pay issue with them.

Classifying workers is often difficult, but Personnel Concepts offers an FLSA Overtime Rules Compliance Kit, which will explain the criteria for exempt and non-exempt classifications and even provide handy checklist forms.

The Department of Labor (DOL), in issuing an updated regulatory agenda this past week, announced it was considering a major change in its approach to enforcement. Instead of letting businesses play what it called a "catch me if you can" game, the DOL said it will issue regulations requiring each company to develop and implement its own compliance plan.

In essence, this would require companies to find, fix and prevent workplace problems before they happen.

Another part of this strategy would call for businesses to issue documents to workers stating and justifying their job classifications–exempt, non-exempt or independent contractor–and then keep a copy of these documents on file for DOL inspectors.

We already knew through previous DOL announcements that the agency was targeting abuse of job classifications, resulting in underpayment or even non-payment to employees. This latest announcement seems to take matters a step further.

We’ll keep tracking this development, but it will probably take months for the DOL to write the necessary regulations and then hold a public commentary period on them. Still, it’s a good idea to check how your classify your employees (and interns if you have any).

A good source for understanding the difference between exempt and non-exempt employees is Personnel Concepts FLSA Overtime Rules Compliance Kit. Get yours today, for the DOL will catch you if it can.

First attorneys got themselves exempted. Physicians then jumped in on sought a similar court order, and now accountants have succeeded in getting a judge to free them from the upcoming implementation of the Red Flags Rule, which requires companies to set up procedures to prevent identity theft.

The Red Flags Rule is part of the Fair and Accurate Credit Transactions Act (FACTA), which Congress passed in 2003. The rule requires financial institutions and creditors, including CPAs who bill clients, to develop and implement a written identity theft prevention program to protect customers’ personal information.

The rule was originally intended to take effect on Nov. 1, 2008, but has been delayed three times by the FTC (Federal Trade Commission) and is now scheduled to take effect on June 1, 2010.

The American Institute of CPAs (AICPA) filed suit in November to piggyback on the success of the attorneys’ American Bar Association (ABA) case.

Voila. The U.S. District Court for the District of Columbia in March granted their wish, but its decision is pending the D.C. Circuit Court’s review of an appeal on the ABA case. 

In short, if that court allows the attorney exemption, the accountants will get theirs as well.

For the rest of American business without deep-pocket associations to fend for them, the Red Flags Rule looms large.

You can simplify your preparation and implement of your own proactive Red Flags Rule, get a copy of Personnel Concepts Workplace Identity Theft Prevention Kit.

Even as the Department of Labor (DOL) and Internal Revenue Service (IRS) begin scouring workplace records for the improper classification of employees as independent contractors, Congress is weighing in with patches to the Fair Labor Standards Act (FLSA) to put some bite behind the bark.

Senator Sherrod Brown, D.-Ohio, has introduced the Employee Misclassification Protection Act (EMPA), which amends the FLSA to require employees to notify newly hired independent contractors in writing of their status.

The law would require employers to retain a record of each notification and specifies that the absence of this record immediately makes the contractor a regular employee of the company. The bill also comes packed with a set of fines and other consequences.

The legislation follows last year’s introduction by Senator John Kerry, D.-Massachusetts, of the Taxpayer Responsibility, Accountability and Consistency Act (TRAC?), which would remove the safe harbor provision of the Revenue Act of 1978 regarding employee misclassification.

DOL Secretary Hilda Solis immediately hailed the EMPA for addressing "this significant and troubling issue" of worker misclassification.

Thus far the DOL under Secretary Solis has targeted interns, independent contractors and non-exempt employees who are misclassified and not paid overtime as the focus of their wage and hour enforcement.

Employers, don’t fly by the seat of your pants in this important area of worker classification. If you get it wrong, you could be subject to back overtime wages and other penalties. Get yourself a copy of Personnel Concepts’ FLSA Overtime Rules Compliance Kit and ensure your employees are classified and paid correctly.