All posts by stu

I9 Form, Immigration, New Hire, Record Keeping, USCIS

New revised I9 Form now available

On July 17, 2017, USCIS released a revised version of Form I-9, (or fillable pdf version) Employment Eligibility Verification, on July 17. Instructions for how to download Form I-9 are available on the Form I-9 page. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through September 17. On and after September 18, employers must use this revised I9 form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9. See the USCIS News release.

What was revised on the Form I-9 instructions:

  • Changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
  • Removed “the end of” from the phrase “the first day of employment.”

Revisions to the List of Acceptable Documents on Form I-9:

  • Added the Consular Report of Birth Abroad (Form FS-240) to List C and to the drop down menu on the fillable form.  E-Verify users will also be able to select Form FS-240 when creating a new case.
  • Combined all the certifications of the report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • Renumbered all List C documents except the Social Security card.  For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

In addition, the USCIS included these changes in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is also easier for users to navigate.

Consultstu LLC provides fractional HR services to small/mid businesses that lower operational costs, improve business processes and maintain compliance. We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Injury Statistics, Workers Compensation

Florida Discontinues Workers Compensation Claims Database

During the 2017 Legislative Session, HB 1107, a bill relating to public records, created 440.1851, Florida Statutes (F.S.). This statute provides an exemption from public records requirements for personal identifying information filed with the Department of Financial Services and other agencies pursuant to the Workers’ Compensation Law; specifying persons to whom and circumstances in which such confidential information may be disclosed. The statute becomes effective on July 1, 2017.

Consequently, the Workers’ Compensation Claims Database is discontinued effective July 1, 2017. If you are an authorized individual, to whom and in circumstances in which such confidential information may be disclosed, please complete the Records Release Authorization Form to enable the Division to respond to your public records request. HB 1107 is attached for your reference.

Now, access to claims information is limited to: the injured employee (or spouse/dependent if authorized by the claimant), a legal representative, party litigant and a carrier or employer for the purpose of investigating the compensability of a claim.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Drug Free Workplace, Medical Marijuana, Workers Compensation

Highlights of the new Florida rules for Medical Marijuana

TALLAHASSEE, FL – On Friday, June 23, Governor Rick Scott signed into law a broader medical marijuana system for the state of Florida.  Lawmakers had been unable to pass the measure in the regular session, so it passed the new law (SB 8A) in a special session.  Before the ink is dry, there are several lawsuits threatened.  John Morgan, the Orlando trial lawyer who bankrolled the constitutional amendment, plans to sue over the ban on smoking marijuana and Joe Redner, the Tampa strip club owner plans to file a lawsuit because people cannot grow their own plants. Here are the highlights from the new rules:

  • The bill includes procedures for patients to be issued medical marijuana for all debilitating medical conditions listed in the State Constitution, but also includes two other conditions: (1) Chronic nonmalignant pain, which is defined as pain that is caused by or that originates from a qualifying medical condition and persists beyond the usual course of the qualifying medical condition; and (2) terminal conditions.
  • Eliminate the 90-day waiting period before the qualified physician may register a patient for medical marijuana.
  • Allow marijuana edibles and vaping, but prohibit the smoking of marijuana.
  • Establish qualifications to become a caregiver and require a caregiver to be registered on the medical marijuana use registry and possess a caregiver identification card.
  • Medical Marijuana Treatment Centers (MMTCs) may begin dispensing marijuana pursuant to this law on July 3, 2017.
  • It will be illegal for a qualified patient or caregiver cultivating marijuana or acquiring marijuana from anyone other than an MMTC.
  • It does not limit an employer’s ability regarding a drug-free workplace program or policy, does not require an employer to accommodate the medical use of marijuana in the workplace or an employee working while under the influence of marijuana, does not create a cause of action against an employer for wrongful discharge or discrimination, and that marijuana is not reimbursable under ch. 440, F.S., relating to workers’ compensation.
  • Rename the Office of Compassionate Use in the DOH, the Office of Medical Marijuana Use.
  • A physician may issue a physician certification for low-THC cannabis only, to a patient who is pregnant.

Read the entire Florida law signed by Governor Scott at the link listed above.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and risk management solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Employee Policies, FMLA, Retaliation

Can Rigorous Enforcement of FMLA procedures become Interference & Retaliation?

Atlanta, GA – On January 27, 2017, the Eleventh Circuit Court of Appeals decided Diamond v Hospice of Florida Key, and analyzed how to review claims of FMLA interference and retaliation.   Here are the facts.  The Plaintiff, Ms. Diamond was a social worker for Hospice of Florida Keys.  She submitted the proper FMLA paperwork because her parents were ill. Hospice approved her to take intermittent FMLA leave.  She took leave at various times between June 2013 and February 2014.  Hospice policy mandated that she use her PTO during these absences.  When she was almost out of paid leave, she received a written notice that her balance was low and that continued absences could affect her employment.  The notice didn’t mention FMLA—just her low PTO balance.  There was an allegation that receipt of this notice could discourage an employee from taking FMLA leave, or continuing to take qualifying FMLA even when PTO was exhausted.

Other allegations of interference and retaliation included (a new HR Manager):

  • A new HR Manager was hired in the middle of the FMLA intermittent leave
  • She was asked for an updated medical certification when her mother’s condition worsened.
  • While on leave, the CEO warned her that she could lose her job if she worked for another company.
  • The new HR Manager requested documentation to verify that she was actually in the places she claimed to be.
  • When her mother was admitted to the hospital, Hospice asked for more documentation.
  • Hospice also noted that her “continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization.”
  • Hospice warned her that she might want to conserve her FMLA leave, as it was “running low” which caused her to not take available leave, which caused her to leave her parents early and not provide recommended care.
  • Five days after Hospice warned her (about 2 weeks after her last leave), Hospice terminated Diamond for poor job performance.

The Eleventh Circuit stated that to establish an FMLA interference claim: (1) that she was denied a benefit to which she was entitled under the FMLA and (2) that she was prejudiced by the interference.  The Court found that interference goes beyond denying leave or refusing to reinstate. Citing the regulations, the Court found that discouraging an employee from using leave can be interference.  Importantly, the employer’s intent doesn’t matter—only the employer’s conduct and whether it discouraged the employee.  Lastly, a plaintiff may not need to show denied leave or lost wages to prove prejudice from the interference.  If she got the leave (and thus did not lose wages), she can show actual monetary losses sustained as a direct result of the alleged violation.

What are the lessons for employers?

  • The way you grant FMLA leave is as important as giving the days requested.
  • Be consistent about treating performance problems during intermittent FMLA leave so you can rebute allegations of retaliation or interference.  Your focus should be on what an employee does, not on their availability or reliability.
  • Follow the rules for re-certifications and don’t ask for extra “proof” apart from what is allowed under FMLA regulations.  If you think the employee is lying, don’t ask for receipts, but use another method to investigate.
  • Discouraging FMLA leave has now been elevated to interference under this decision.
  • Train managers about FMLA and employee rights, and that they should not express frustration with employee absences.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Discrimination, EEOC, Gender Non-conformity

Gender non-Conformity Discrimination is Actionable under Title VII in Florida

In an important decision affecting Florida employers, on March 10, 2017, the Eleventh Circuit Court of Appeals decided that sexual orientation discrimination is not actionable under Title VII.  Title VII is the federal law that protects employees from employment discrimination in the workplace, but it is not the only law.  Florida state law, as well as local ordinances (city and county) also regulate employer conduct.  Florida state law does not protect sexual orientation, but many cities and counties protect sexual orientation, therefore employer policies and practices should reflect and comply with all applicable regulations.  When necessary, employers also should take care to cover sexual orientation as a protected category when providing antidiscrimination and antiharassment training to employees and their supervisors.

In the case of Evans v. Georgia Regional Hospital, the plaintiff was a security guard at the Georgia Regional Hospital.  Her lawsuit was based on claims that she was discriminated against because of her sex and terminated for not carrying herself in a “traditionally womanly manner.”  Ms. Evans was gay and alleged that she did not broadcast her sexuality; however, she clearly identified as a male and presented herself as male by wearing a male uniform, a male haircut, and men’s shoes.  She claimed that she was terminated for gender non-conformity and retaliation after she complained to her employer about the alleged discrimination.

While the appellate court found that discrimination based on gender non-conformity is actionable, it held that prior precedent mandated that sexual orientation discrimination is not recognized under Title VII.   It concluded that the majority of other circuits have held that sexual orientation discrimination is not actionable under Title VII. However, on April 4, the Seventh Circuit issued a groundbreaking decision that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited under Title VII of the Civil Rights Act of 1964.  This sets up a future decision by the U.S. Supreme Court on this subject.

Under the Obama Administration, the EEOC has taken the position that all complaints of discrimination on the basis of sexual orientation are sex discrimination claims under Title VII, at least for claims against the federal government.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and risk management solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Construction, OSHA, Safety

Construction Silica Regulation delayed until Sept 23, 2017

WASHINGTON – On April 6, the U.S. Department of Labor’s Occupational Safety and Health Administration announced a delay in enforcement of the crystalline silica standard that applies to the construction industry.  The 90 day delay will be used for additional outreach and development of educational materials and guidance for employers.  Originally scheduled to begin June 23, 2017, enforcement will now begin Sept. 23, 2017 for construction employers.  The new OSHA regulations create a significantly lower permissible exposure limit and require the implementation of specific dust controls for certain operations as provided in regulations Table 1.  In addition, construction employers must comply with the standard’s other requirements, including exposure assessment, medical surveillance, and employee training.

Crystalline silica is a common material found in many workplace operations such as cutting, sawing, drilling or crushing of concrete, brick or stone, or operations using sand products such as sandblasting and hydraulic fracturing.  Among the industries most likely to be affected are (1) construction; (2) concrete products; (3) ready mix concrete; (4) stone and stone products; and (5) abrasive blasting.   General industry will be affected starting in 2018, and the new regulations cover over 30 pages.  OSHA’s Crystalline Silica web page provides a good source of information.  The most challenging change posed by the new rule is the new Permissible Exposure Limit (PEL) of 50 micrograms of respirable crystalline silica per cubic meter of air (50 µg/m3) averaged over an eight-hour day.  Employers will be required to maintain, through engineering controls or respiratory protection, exposures below the 50 µg/m3 PEL.

Florida employers can attend a free one-day training session intended to educate front line employees and foreman about OSHA’s new silica standard for the construction industry, presented by the USF OSHA Training Institute. Sign up online for the upcoming classes in Tampa, Daytona, Orlando, West Palm and more.

Consultstu LLC provides fractional HR and safety services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Americans with Disabilities Act, Disabilities, EEOC, Wellness program

Wellness Program Lawsuit Settled, Employer Pays $100,000 and Changes Program

MINNEAPOLIS — On April 5, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it has resolved its lawsuit against Orion Energy Systems, a Wisconsin lighting company after it challenged its wellness program under the Americans with Disabilities Act (ADA).  The lawsuit also alleged that Orion Lighting retaliated against an employee who objected to the wellness program by terminating her.

According to the EEOC, Orion instituted a wellness program that required medical exams and made disability-related inquiries.  Employees were required to complete a health risk assessment, self-disclose their medical history and have blood work performed.  The program also included a fitness component under which employees were required to use a Range of Motion Machine (or ROM) in Orion’s physical fitness room, and fill out a medical history form.   The medical exam and disability-related inquiries which were part of Orion’s wellness program were not job-related and consistent with business necessity.  When an employee, Wendy Schobert, declined to participate in the program, Orion shifted responsibility for payment of the entire premium for her employee health benefits from Orion to Schobert.  The EEOC alleged that shortly thereafter, Orion fired Schobert.

The EEOC filed its lawsuit in U.S. District Court for the Eastern District of Wisconsin (EEOC v. Orion Energy Systems, Inc., No. 14-CV-1019 E.D. WI).  During litigation, the district court rejected the employer’s argument that the insurance safe-harbor provision in the ADA immunizes wellness plans from scrutiny under the Americans with Disabilities Act (ADA).  The court concluded that the EEOC’s recently issued regulations on the ADA’s safe-harbor provision were within the EEOC’s authority and further held that the safe-harbor provision did not apply.  The parties agreed to settle the dispute prior to trial and entered a consent decree.  Under the consent decree, Orion agreed to pay $100,000 to Schobert and agreed that it will not maintain any wellness program in the future that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA and its regulations.

New EEOC rules published on May 17, 2016, under the Americans with Disabilities Act (ADA) require employers who offer wellness programs that collect employee health information to provide a notice to employees informing them what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential.  Sample Notice for Employer-Sponsored Wellness programs.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Compensation, Manager, Overtime, Wage and Hour

Assistant GMs at Wawa Sue for Overtime in NJ, PA

CAMDEN, NJ – In late January 2017, four (4) former Wawa employees filed a proposed class-action lawsuit contending the firm improperly denied overtime pay to some workers at its convenience stores.  The men contend Wawa’s pay practices for assistant general managers (AGMs) violate federal and state laws in New Jersey, Pennsylvania, and Maryland because their primary duties are “manual in nature.”  The lawsuit alleges that Wawa fails to budget enough money for hourly store clerks (who receive overtime pay) to complete all necessary tasks, so assistant general managers typically handle chores like operating cash registers, making hoagies and stocking shelves.  Wawa operates more than 730 stores in six states.  One of the plaintiff’s alleged that he typically worked for 50 to 55 hours per week, but was paid for 40, according to the suit.  He also stated that the AGM duties did not include “hiring, firing, disciplining or directing the work of other employees, and exercising meaningful independent judgment.”  The lawsuit is a reminder that there has been an explosion of wage and hour lawsuits around the country and challenging the exemptions of assistant general managers and store managers.

Under the Fair Labor Standards Act, a general (or store) manager is an exempt executive employee when he/she satisfies the following test:

  • Compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;
  • Primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
  • Customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
  • Have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.  Read the DOL Fact Sheet.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Disabilities, EEOC, FMLA, Reasonable Accomodation

Employer must consider Reasonable Accommodations after FMLA expires

On March 3, 2017, Real Estate Services giant Cushman & Wakefield, headquartered in Chicago), agreed to a $100,000 settlement with the EEOC to resolve a disability lawsuit involving an Administrative Assistant with breast cancer.  A nine (9) year employee requested a medical leave of absence under the Family and Medical Leave Act (FMLA) for breast cancer treatment.  As a reasonable accommodation, the employee requested to return to work on a part-time basis while she underwent treatment and advised the company that she might need additional unpaid leave after her surgery.  The EEOC lawsuit alleged that Cushman & Wakefield fired the employee (on or about the date her FMLA leave expired) instead of allowing her to work part-time or providing another reasonable accommodation that would have allowed her to remain employed. Prior to the expiration of FMLA, the employee submitted a return to work letter from her oncologist permitting part-time work (up to 25 hours per week).  The Company stated that it could not accommodate her part-time schedule request. The ADA requires that employers provide reasonable accommodations to qualified individuals with disabilities, such as modified work schedule or unpaid leave.  Compliance with the FMLA, and not considering the ADA, does not meet employer obligations.

In addition to the cash settlement, Cushman & Wakefield agreed to:

  • revise and distribute to all employees a reasonable accommodation policy, which lists part-time and unpaid leave as examples of accommodations.
  • annual training to all location managers, supervisors and HR personnel
  • inform new employees about reasonable accommodation policy
  • report to EEOC on how it handles employee complaints
  • post notice regarding settlement

Read the EEOC’s Complaint and Jury Trial Demand (Case 1:16-cv-02788-JKB) Northern District of Maryland.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Compensation, Employee benefits, Recruiting, Retention

What the most desired employee benefits in 2017?

Employee benefits are important to attract quality employees.  As the economy continues to improve in 2017, Florida’s small and mid-sized businesses must recognize that a competitive benefits package is necessary to attract and retain the right employees and fill critical positions.   If your company is not a high tech company and not trying to hire code writing millennials – do you need to even consider things like unlimited vacation, professional chefs, onsite massages, haircuts and free snacks and energy drinks?  In mid-February 2017, the Havard Business Review (HBR) reported on a survey that asked 2,000 U.S. workers, in a variety of age groups, to provide their level of importance for 17 common employee benefits.  How heavily would each benefit weigh on their decision between a high paying job and a lower paying job with more perks and benefits.  Survey respondents were asked to say whether the specific employee benefit had “some consideration” or  “heavy consideration” when taking a new job.

Here are the top fourteen (14) most valued benefits (based on the total % of heavy and some consideration from respondents) to convince a job candidate to choose a company:

  • Better health, dental and vision insurance – 88%
  • More flexible hours – 88%
  • More vacation time – 80%
  • Work from home options – 80%
  • Unlimited vacation – 68%
  • Student loan assistance – 48%
  • Tuition assistance – 44%
  • Paid maternity and paternity leave – 42%
  • Free gym membership – 39%
  • Free day care services – 39%
  • Free fitness/yoga classes – 33%
  • Free snacks – 32%
  • Free coffee – 30%
  • Company-wide retreats – 26%

In summary, employee benefits that impact a person’s lifestyle and finances (vacation, time off, insurance) are the most coveted by employees, while the in office freebees and goodies (food, snacks and drinks) are nice but do not drive decisions.  The survey organizers also determined that women were more likely to prefer family benefits like paid parental leave and free day care.  Men were more likely than women to value team building events and office snacks.  Both genders valued fitness related perks – but women preferred free fitness and yoga classes and men preferred on-site gyms and free gym memberships.   Overall, women (more than men) rated employee benefits as having a heavy impact on their employment decision, especially on insurances, flexible hours and work from home options.

Read the article from the Harvard Business Review.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

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