Happy New Year! 2009, The Year of Compliance

Happy New Year and Welcome to 2009! Whether you come kicking and screaming, gleefully, or fearfully, we’re here and we’ve got our work cut out for us.

If you’re handling a business or dealing with Human Resource issues – 2009 will be a year of must-do compliance issues.  While the headlines and the doom and gloom reported by the media can seem overwhelming, I’d like to point you to the top five (5) things you can do to minimize your headaches.

Step 1: Make sure that by next Friday (January 16, 2009), you are using the new forms and poster required by the implementation of the FMLA Regulations that we’ve discussed here in previous posts.

Simply print the Family and Medical Leave Act (FMLA) poster, then post it and keep it posted on your premises, in conspicuous places where employees are employed.

Then, start using the forms.
The DOL’s revised Certification of Health Care Provider form (WH-380) is now divided into two separate forms: an Employee’s Serious Health Condition (WH-380E) and a Family Member’s Serious Health Condition (WH-380F).   The DOL also revised its Notice of Eligibility and Rights and Responsibilities form (WH-381) and added new forms for Designation Notice to Employee of FMLA Leave (WH-382), Certification of Qualifying Exigency for Military Family Leave (WH-384), and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).  You can work with an advisor of your choosing to update these forms within your organization, but for all practical purposes, the forms provided by the DOL, used correctly, will adequately fulfill your obligations - just make sure you understand them and use them appropriately.

And finally, revise Employee Handbook/Policy provisions.
If you have a policy or handbook with a provision related to FMLA, you have to revise those handbooks/policies and provisions to incorporate these changes, specifically - notice about enforcement.

Step 2: make sure you are complying with the ADA Amendments Act (ADAAA), which became effective January 1, 2009).

Based on these amendments, employers should consider the following:

• Revising job descriptions to define essential job functions and minimum qualifications.
• Formalizing the interactive process for assessing disability issues.
• Educating supervisors on the expanded ADA coverage.

The Job Accommodation Network (”JAN”), the DOL’s Office of Disability Employment Policy, has released a new publication and a resource page (Accommodation and Compliance Series: The ADA Amendments Act of 2008) that will be periodically updated in order to help employers manage this new law.

Step 3: if you are a government contractor or subcontractor, you may need to register for the E-Verify System for new and existing government contracts, effective January 15, 2009.

As we’ve stated here previously, the USCIS has amended regulations governing the types of acceptable identity and employment authorization documents that employees may present to their employers for completion of the Form I-9, Employment Eligibility Verification. In addition to other changes, under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9.

While the revised Form I-9 has not yet been issued, employers must begin using the new version of the form on February 2, 2009. The form will be available on the USCIS website before that date.  The current version of the Form I-9 will no longer be valid as of February 2, 2009.

Step 4: Audit your wage and hour compliance practices.

Wage and hour lawsuits will continue to be problematic for employers in the New Year.  A self-audit of compliance practices can mitigate such claims, particularly in the following areas:
•    Employee classification (exempt vs. non-exempt)
•    Off the clock work (starting times, breaks and meal periods)
•    Donning and Doffing
•    Child labor

Step 5: start planning now for EFCA and the RESPECT Act - this pending legislation will likely impact employers in very substantive ways.

Developing an action plan should be high on your list of priorities and should include the following items:
•    Assess union eligibility of working supervisors under the RESPECT Act.
•    Educate supervisors on authorization cards and the ins and outs of EFCA.
•    Adopt union-free policies on solicitation, bulletin boards, and use of e-mail.
•    Initiate engagement surveys.

Bonus Step: Plan your work and work your plan!

While these are just a few of the changes this year will bring us, don’t get overwhelmed.  Work with a trusted advisor of your choosing to stay on top of these compliance issues and have a terrific 2009!