All posts by stu

Compliance, EEOC, Employment Poster, HR Compliance, Posters

New 2022 EEO “Know Your Rights” Poster Free to Download

On October 20, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) quietly released a new final “Know Your Rights: Workplace Discrimination is Illegal” poster. Click here. The poster summarizes the EEO laws and explains how employees or applicants can file a complaint if they believe that they have experienced discrimination. The new poster replaces and supersedes the older version of the poster that was titled “EEO is the Law” and had last been updated in November 2009. The poster is available in English and Spanish.

The law requires an employer to post this notice describing the Federal laws prohibiting job discrimination based on race, color, sex (including pregnancy and related conditions, sexual orientation, or gender identity), national origin, religion, age (40 and older), equal pay, disability or genetic information (including family medical history or genetic tests or services), and retaliation for filing a charge, reasonably opposing discrimination, or participating in a discrimination lawsuit, investigation, or proceeding.

The poster should be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted. In addition to physically posting, covered employers are encouraged to post the notice digitally on their websites in a conspicuous location. In most cases, electronic posting supplements the physical posting requirement. In some situations (for example, for employers without a physical location or for employees who telework or work remotely and do not visit the employer’s workplace on a regular basis), it may be the only posting.

Americans with Disabilities Act, Compliance, Direct Threat, EEOC, Employee Rights, Essential functions, Fitness for Duty, Reasonable Accomodation

How do Employers Make a “Direct Threat” Determination

The Americans with Disabilities Act (ADA) is 30 years old and employers are familiar with its general requirement to provide reasonable accommodation to qualified individuals (applicants and employees) with a physical or mental impairment that substantially limits a major life activity. A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, perform the essential functions of a job, or enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. Read more.

If an applicant or employee with a disability poses a direct threat to the health or safety of himself or others, an employer must consider whether the risk can be eliminated or reduced to an acceptable level with reasonable accommodation. A direct threat means a significant risk of substantial harm. The harm cannot be speculative, or remote risk. An employer must review the facts of the situation to determine if the individual poses a direct threat to the health and safety of himself or others, that cannot be eliminated (or reduced to an acceptable level) with reasonable accommodation. How does this work in the real world?

U.S. Steel confronted this situation when it gave a conditional offer of employment to an applicant who would be driving a forklift, work with power tools and around hazardous chemicals. The fitness-for-duty exam doctor learned that the applicant had stopped taking his anti-seizure medication against his physician’s advice. The company revoked the offer of employment because he would pose a direct threat to himself and others in the workplace. In the lawsuit, the court concluded that the employer must conduct an individualized assessment of the person’s ability to safely perform the essential job functions. There are 4 key factors in the analysis:(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

U.S. Steel reviewed the following information: applicable DOT regulations, a completed health inventory form, a physical examination, and medical records and neurologist’s notes. U.S. Steel concluded that the employee’s seizures were not well controlled, and his condition was indefinite (not temporary). The nature and severity of the harm could be disastrous since his seizures caused loss of consciousness. His seizures were uncontrolled and of unlimited duration. It was imminent harm, even though he had only 4 seizures in his life, 2 episodes happened since he stopped taking his medication. This showed U.S. Steel that he was at higher risk of having another seizure.

Here are the lessons from the U.S. Steel case. First, a medical examination along with the consideration of relevant medical records is crucial to weigh the 4 factors. Second, employers should document their steps and process used to evaluate the employee, limitations/abilities, job requirements, and the probability of harm. Lastly, maintain open communication with the affected person about the company’s process and its decision, and allow for their input and consideration related to any reasonable accommodations. Read the case.

Compensation, Employee Handbook, Employment Poster, Florida rules, HR Compliance, Minimum Wage, Posters, Wage and Hour

Florida Minimum Wage will increase to $11.00 per hour on September 30, 2022

Effective September 30, 2022, the Florida minimum wage will increase from $10.00 to $11.00 per hour. Additionally, the minimum wage for tipped employees will increase by $1.00 to at least $7.98 per hour, in addition to tips. The next minimum wage increase is set for September 30, 2023.

In 2020, Florida voters approved a state constitutional amendment to gradually increase the state’s minimum wage each year until reaching $15.00 per hour on September 30, 2026.

Download these new posters for FREE from the Florida Department of Economic Opportunity – English version and Spanish version.

Discrimination, EEOC, Employee Policies, Harassment, HR Compliance, Human Resources, Title VII

Conciliation Agreements: What are the EEOC Requirements?

The Equal Employment Opportunity Commission (EEOC) investigates charges of unlawful discrimination and conducts an investigation into the allegations and the employer’s response. After assessing the evidence, the EEOC sometimes issues a Letter of Determination that there is reasonable cause to believe that a company discriminated against the charging party (employee) in violation of Title VII. In the Letter of Determination, the EEOC will attempt to resolve the case through a written conciliation agreement. The Conciliation Agreement is a settlement of the case and contains a list of required actions that the employer must take to eliminate the alleged unlawful practices. An employer is typically given seven (7) days to inform the EEOC if it wishes to participate in conciliation. We examined a recently proposed Conciliation Agreement and here are the EEOC requirements.

Can an employer decline conciliation? Yes, if the employer declines conciliation or the EEOC investigator is unable to secure a settlement acceptable to the Commission, the EEOC will advise the complaining party and employer about the court enforcement alternative and will issue a “Right to Sue” letter to the employee.

Here are the EEOC requirements from the Conciliation Agreement:

  • Five year agreement.
  • Dollar amount for settlement.
  • Retain a subject matter expert to conduct yearly training to employees about Title VII (live and in person) – for 5 years
  • Retain subject matter expert to conduct yearly training to management and HR employees (live and in person) – for 5 years. Specific recommendations for training content.
  • Implement an Anti-Discrimination policy that contains specific content including language about: (1) clear complaint process, (2) identifies individuals to receive complaints, (3) prompt, impartial investigations, (4) examples of prohibited conduct, (5) no tolerance for prohibited conduct, (6) protection from retaliation, (7) confidentiality protection, (8) appropriate disciplinary action for violations, (9) managers required to escalate complaints of harassment, and (10) retaliation that is substantiated will result in discipline.
  • Adopt a policy to hold supervisors accountable for compliance with EEOC policies and procedures.
  • Maintain recordkeeping procedure for tracking discrimination, harassment and retaliation complaints.
  • Submit an annual report to the EEOC regarding various actions under the Conciliation Agreement, including information about complaints, investigations and company responses.
  • Display the EEOC poster in a location accessible to employees and applicants.

in 2021, there were only 111 successful conciliation agreements (0.5% of cases), down from 377 (1% of cases). The Trump Administration had proposed new conciliation regulations in 2021, designed to make conciliation more transparent and require the EEOC to disclose facts known to the EEOC. Before it took effect, President Biden signed a joint resolution eliminating the new rules and declared that the “onerous and rigid new procedures,” would increase the risk of retaliation against workers who file complaints or participate in discrimination investigation.

CDC, Coronavirus, Human Resources

CDC Streamlines COVID-19 Guidelines

In early August, the CDC updated and streamlined its guidelines for COVID-19 to help people better understand risk and how to protect themselves.  As compared to earlier in the pandemic, there is significantly less risk of severe illness and death thanks to the resources available to us now.

In support of this update, the streamlined guidelines put forward by the CDC include promoting the importance of up-to-date vaccination.  The new updated guidance equalizes treatment for those vaccinated, and not vaccinated, when there is an exposure to someone with COVID-19.  Regardless of vaccination status, instead of quarantining after exposure to COVID-19, CDC now recommends wearing a mask for 10 days and testing on day 5 after exposure to COVID-19.

CDC still recommends isolation away from others after testing positive for COVID-19, including a 5-day isolation period after first testing positive for the virus and an end to isolation if fever-free for 24-hours. If an individual has moderate or severe illness, it is recommended that isolation be extended through day 10 and it may be wise to contact your health care provider.

In the coming weeks, new updates will be added for travel, healthcare settings, and other high-transmission settings.  Click here for the CDC media release source.

Business Expenses, Commercial Motor Vehicle Driver, Compensation, Drivers, HR Costs, IRS

IRS Increases Standard Business Mileage Rate to 62.5 cents per mile

High inflation and soaring gas prices caused the IRS to make a mid-year adjustment in the business mileage rate. Effective July 1 through Dec. 31, 2022, the standard mileage rate for the business use of employees’ vehicles will be 62.5 cents per mile—the highest rate the IRS has ever published—up 4 cents from the 58.5 cents per mile rate effective for the first six months of the year. Announcement 2022-13 informs taxpayers that the Internal Revenue Service is modifying Notice 2022-3, 2022-2 I.R.B. 308, by revising the optional standard mileage rates for computing the deductible costs of operating an automobile for business and for determining the reimbursed amount of these expenses that is deemed substantiated. If you want to know how to calculate a mileage deduction, check out this Nerdwallet article.

Compliance, Concerted Activity, Dress Code, Employee Handbook, Employee Rights, NLRB, Section 7 Rights

Prohibiting BLM Messages on Employee Clothing is Legal says NLRB Judge

Most employers have dress code requirements and prohibit employees from wearing certain messages and symbols on their work attire. At Home Depot, its dress code states that the orange apron “is not an appropriate place to promote or display religious beliefs, causes or political messages unrelated to workplace matters.” Home Depot employees are prohibited from using the apron for “displaying causes or political messages unrelated to workplace matters.” After George Floyd, a Minneapolis area employee put BLM messaging on his apron, in violation of policy. Despite the manager trying to convince the employee to remove the message, he was terminated after he refused to remove it. He complained to the National Labor Relations Board (NLRB) and the agency sued Home Depot and claimed that the retailer violated federal labor law by preventing staff from displaying the message “Black Lives Matter” on their aprons, as well as by threatening and punishing employees to discourage collective action.

On June 10, 2022, an Administrative Law Judge last week ruled for Home Depot because he concluded that the BLM messaging lacked any objective and direct relationship to terms and conditions of employment, so it was not legally protected by federal law (NLRA). He concluded that the message was originally used to address the unjustified killings of Black individuals by law enforcement and vigilantes. To the extent that BLM is used beyond that, it operates as a political message for societal concerns and only relates to the workplace because workplaces are in society. The NLRB issued an unfair labor practice complaint against Home Depot for enforcing its dress code policy and requiring the employee to remove the BLM message. However, the evidence showed that BLM messaging neither originated as, nor was shown to be reasonably perceived as, an effort to address the working conditions of employees. It may have profound societal importance, but it was not directly relevant to the terms and conditions of Home Depot employees, as employees.

Under the Biden Administration, the new NLRB General Counsel has announced an intent to expand the concept of “concerted protected activity” beyond traditional limits, by including activity in support of political and social justice issues, such as BLM, $15 minimum wage, undocumented workers etc… The NLRB has also taken legal action against Whole Foods, which also prohibits employees from wearing face coverings with Black Lives Matter imprinted on them.

Compliance, Concerted Activity, HR Compliance, Human Resources, NLRB

Are Union Election Petitions Increasing in early 2022?

Yes. According to the National Labor Relations Board (NLRB), during the first six months of fiscal year 2022 (October 1–March 31), union representation petitions filed at the NLRB have increased 57%—up to 1,174 from 748 during the first half of FY2021. At the same time, unfair labor practice charges have increased 14%—from 7,255 to 8,254. Read more. The numbers are driven mainly by over 250 cases filed by Starbucks employees alone (with around 40 stores voting for a union). In recent years, unions have been moving away from manufacturing and toward non-profits and the healthcare industry.

A representation petition is filed by employees, unions, or employers with an NLRB Field Office to have the NLRB conduct an election to determine if employees wish to be represented by a union. The Field Office investigates the petitions and, if meritorious, conducts an election to allow employees to decide whether or not they wish to be represented by a union. An unfair labor practice charge is filed by any member of the public with an NLRB Field Office if they believe an employer or union has violated the National Labor Relations Act. An NLRB field office will then investigate the charge and issue a complaint, absent settlement, if the Regional Director determines the charge has merit.

What workplaces are subject to the National Labor Relations Act (NLRA)? The NLRA applies to most private-sector employers, including manufacturers, retailers, private universities, and health care facilities.  The NLRA does not apply to federal, state, or local governments; employers who employ only agricultural workers; and employers subject to the Railway Labor Act (interstate railroads and airlines). It covers employees at union and non-union workplaces. The law does not cover independent contractors and most supervisors.  Read more.

Arbitration, Discrimination, EEOC, Retaliation

Arbitration Clause Won’t Prevent Sexual Harassment Lawsuits

Over the years, many employers include pre-dispute mandatory arbitration agreements with new employees (sometimes in an employee handbook, and otherwise in a separate agreement). Both parties agree to submit any employment-related disputes to arbitration, rather than to the traditional court process. Arbitration is an alternative dispute resolution technique that is very different than a court case, in front of a judge and jury. A dispute is heard by an arbitrator, who follows the applicable law, and issues a binding decision on the parties. These decisions, in general, can not be appealed, so the decision is final.

In March 2022, a new federal law ended forced arbitration of sexual harassment claims. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, H.R. 4445 (The “Act” or “EFASASHA”), was signed by the President. The Act prohibits the forced arbitration of sexual harassment claims and allows these claims to be brought in court even if the Employee is bound by a mandatory arbitration agreement. Mandatory pre-dispute arbitration agreements are not invalid or unenforceable, but the new law permits the employee to be a named party to a lawsuit alleging sexual harassment or sexual assault under federal or state law.

Net result for employers is that an employee with a sexual harassment claim for conduct that arose on or after the date of the EFASASHA (March 3, 2022) can invalidate any pre-dispute arbitration agreement even if it was signed prior to March 3. The new law goes beyond employment agreements, and also covers independent contractors, customers, and any other persons with whom a business may try to enforce mandatory arbitration. Arbitration agreements can be enforced for other workplace and employment disputes, such as claims for retaliation, wage and hour, and discrimination.

Audits, E-Verify, HR Compliance, I9 Form, Immigration, Publix Immigration Certification

Form I9 Audits – What you need to know

The I-9 Form is a legally required document for new hires. It is used by employers to prove an individual is legally eligible for employment in the United States. The form is legally required by the U.S. Immigration Reform and Control Act (IRCA). The current form is 2 pages long; employees and employers complete their respective sections, as well as sign and date it.  A properly completed form verifies the identity of an employee and ensures that the individual is legally capable of working in the U.S. These forms shall be kept separate from the employee’s file, and in Florida, employers are required to either use E-verify or keep copies of the employment authorization documents.

So far in 2022, Consultstu has performed several independent third-party immigration reviews for companies contracting with Publix Supermarkets Facilities Services. When completing I9 audits, here are some common compliance errors we identify in client paperwork:

  • I9 form was created late (employee completed Section 1 after 1st day).
  • Section 2 (review and verification section) is not fully completed by the employer or an authorized representative (within 3 business days of hire).
  • Employee start date missing, or different than payroll records.
  • Issuing authority of out of state drivers’ license incorrect
  • Employee failing to complete the translator box (bottom of page 1).
  • Putting Driver’s License information in List A (should be List B).

According to the US Citizenship and Immigration Services, if corrections are necessary to an I9 form, corrections should be initialed and dated on the form so it is clear who and when the correction was made. Employees make corrections to Section 1, and Employers make corrections to Section 2.

When completing an audit, ConsultStu provides the client with valuable notes and recommendations regarding your Form I-9s, how to correct any errors, and best practices to improve your knowledge and overall compliance.  This extra service has been greatly appreciated.  Our service is completely remote, thorough, and accurate, and reviews your company’s Form I-9s, supporting documents, and E-Verify documentation. 

Have any questions? Call us today at (727) 350-0370 to discuss or schedule an annual (new or re-certification) Publix Immigration Review and I-9 Audit.

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