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HR Update with Cyndi Mergele


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HR Update with Cyndi Mergele

  1. 1. 2011 Texas Nonprofit SummitHR Compliance and Enforcement for 2011<br />
  2. 2. Introductions <br />Human Resources Consulting Group<br />Padgett, Stratemann & Company, L.L.P. <br />Address agency representation<br />
  3. 3. Agenda<br />I-9s and E-Verify<br />Department of Labor<br />Employees, Interns, Volunteers<br />Independent Contractors<br />Exempt vs. Non-exempt<br />ERISA<br />OFCCP<br />
  4. 4. ICE<br />Immigration Customs Enforcement (ICE)<br />Principal investigative arm of the U.S. Department of Homeland Security <br />2nd largest investigative agency in the federal government <br />More than 20,000 employees in offices in all 50 states and 47 foreign countries <br />Annual budget of more than $5.7 billion dollars <br />
  5. 5. Headlines <br />For the current fiscal year (October 2010), ICE has audited 2,338 employers<br />On Wednesday, June 15, 2011, 1000 employers in US notified of I-9 inspection<br />Enforcement strategy has shifted to employers<br />
  6. 6. Headlines – National <br />WHO: Abercrombie & Fitch<br />WHAT: Settlement for more than $1.04 million<br />WHERE: Michigan <br />WHEN: September 2010 <br />Things To Consider:<br />Technology related deficiencies in electronic I-9 system <br />No instances of knowingly hiring unauthorized individuals <br />Employment verification process serious<br />* Source:<br />
  7. 7. Headlines – Texas<br />WHO: Lone Star Bakery <br />WHAT: 200 of 500 employees laid off at 2 plants due to not having proper documentation<br />WHERE: China Grove, TX<br />WHEN: February 2011 <br />Things to Consider:<br />Several employees had been with the company 15 years<br />Social security numbers not matching to names <br />Impact on company business <br />* Source: Express News<br />
  8. 8. Recent Changes To The I-9<br />New I-9 Form <br />Revision date of 08/07/09 <br />Expiration date of 08/31/12<br />Modification to I-9 Form (Final Rule Implemented 4.14.11)<br />All documents must not be expired <br />Documents containing no expiration are deemed to be expired <br />Changes to list of acceptable documents <br />Adds a 4th box to the form – Non-citizen nationals of the US <br />
  9. 9. Recent Changes To The Handbook <br />Purpose of Handbook: Help employers understand the Form I-9 process <br />Purpose of Handbook Revision to address the following:<br />Regulations regarding electronic storage and retention of forms<br />Questions regarding processing an employee with “complicated immigration status” (USCIS) <br />Revised “Handbook for Employers” (M-274) as of 1/5/2011 <br />Last update occurred in July 2009 <br />
  10. 10. Recent Changes To The Handbook <br />What’s New:<br />Visual aids for completing the Form I-9 <br />Examples of USCIS documents <br />Expanded guidance on processing employees in H-1B status or H-2A status <br />Expanded guidance on extensions of stay for employees with temporary employment authorization <br />Additional Q&A<br />
  11. 11. Things to consider<br />Every organization, regardless of status, has exposure<br />It’s not just about hiring undocumented workers, it is also about completing the I-9 form timely and correctly<br />Sometimes the attempts a correction make things worse<br />
  12. 12. E-Verify <br /> E-Verify is an Internet based system that compares information from an employee’s Form I-9, Employment Eligibility verification, to data from the U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. <br /><ul><li>Requirement for certain employers (and in certain states)</li></ul>Specifically designed to verify employment authorization <br />Does not provide protection from worksite enforcement (ICE)<br />Different than the SSNVS and the TNEV<br />According to ICE – more than 225,000 employers use E-Verify, with about 1,000 new businesses signing up each week. <br />
  13. 13. E-Verify<br />
  14. 14. E-Verify <br />Why?<br />Deters document and identity fraud <br />Helps maintain a legal workforce <br />Protects jobs for authorized workers <br />
  15. 15. E-Verify<br />Who?<br />As of September 8, 2009, federal contractors with contracts containing E-Verify clause must use E-Verify <br />Prime contracts contain FAR E-Verify Clause <br />Value above $100,000<br />Period of performance of 120 days or more <br />At least some of the contract work performed in US <br />Clause flows down to all tiers of subcontractors <br />Prime is responsible for ensuring clause is included in qualifying subcontracts <br />Subcontracts <br />Value of more than $3,000 <br />Contract is for commercial or noncommercial services or construction <br />
  16. 16. E-Verify<br />When?<br />Timeframes of enrollment vary <br />30 calendar days of Contract Award Date or Contract Modification Date<br />Enrollment decisions<br />Who will sign the MOU<br />Which hiring sites, company locations <br />Who will have access<br />Who will be designated program administrator <br />
  17. 17. E-Verify<br />Determining who to verify<br />Existing employees – entire workforce <br />All new hires and existing employees assigned to the contract<br />When to verify<br />Begin entering Form I-9 information within 90 calendar days of enrolling or updating organization designation<br />If entire workforce within 180 calendar days of enrolling or updating organization designation<br />Once beginning to enter Form I-9 information for new hires, enter no later than the 3rd business day after the employee’s start date<br />
  18. 18. E-Verify <br />Unless you are a Federal Contractor with FAR E-Verify Clause only use E-Verify to verify new hires<br />For a contract with the FAR E-Verify clause awarded on or after September 8, 2009 <br />Verify all existing employees working on the contract<br />Verify all new employees hired after the date of enrollment in E-Verify <br />OR<br />Verify entire workforce <br />
  19. 19. E-Verify<br />Important Take Aways<br />Doesn’t cost to participate, but….<br />Not based on number of employees but amount of contract<br />Rules vary for those using E-Verify <br />Documents accepted<br />Example – If employee present a document from List B, a document is required with a photograph <br />Poster requirement <br />Should I participate if not required?<br />Advantages vs. Disadvantages vs. Compliance <br />
  20. 20. E-Verify – Here and Coming Soon<br />E-Verify website redesigned <br />E-Verify Video – How to run a case, Understanding E-Verify, Know Your Rights <br />Passport matching capability<br />Legislation introduced by Representative Lamar Smith (R-Texas)- Legal Workforce Act (H.R. 2164)-would improve E-Verify System, make it mandatory for all employers and would repeal I-9 system <br />
  21. 21. DOL-Fair Labor Standards Act<br />The Fair Labor Standards Act-about who is an employee and how you have to pay them<br />Employment is defined as “to suffer or permit to work.”<br />Minimum wage, overtime and child labor<br />
  22. 22. DOL-Fair Labor Standards Act<br />Intern, Trainee, or Volunteer?<br />Interns<br />DOL Fact Sheet #71 ONLY addresses “For Profit” (except for footnote). To be a trainee and exempt from minimum wage and overtime, ALL the following must be met:<br />Internship, even if though it includes actual operation of the facilities of the employer, is similar to training that would be given in an education environment;<br />The internship is for the benefit of the intern;<br />The intern doesn’t displace a regular employee, but works under close supervision of existing staff;<br />The employer that provides training derives no immediate advantage from the activities of the inter; and on occasion its operations may be impeded;<br />The intern is not necessarily entitled to a job at the end of the internship; and<br />The employer and the intern understand that the intern is not entitled to wages for the time spend during the internship.<br />
  23. 23. DOL-Fair Labor Standards Act<br />Intern, Trainee, or Volunteer?<br />Volunteer<br />DOL indicates : “Individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, no as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.<br />Examples-Presenting a job skills workshop at a shelter; parents assisting in the school library, driving and delivering food to the elderly; a camp counselor in a youth program<br />Volunteers may receive nominal compensation-fee or other compensation cannot be greater than 20% of the amount that would otherwise be paid to a full-time employee<br />
  24. 24. DOL-Fair Labor Standards Act<br />Intern, Trainee, or Volunteer?<br />Conclusions<br />We still wait for additional guidance<br />Evaluate the work the individual will be doing<br />Document the terms of the agreement<br />When in doubt, at least pay minimum wage<br />
  25. 25. Independent Contractor or Employee?<br />Misclassification of independent contractors <br />TWC selecting accounts for audit <br />Insure proper reporting of wages and taxes for employment purposes<br />Request to review 1099’s and time cards <br />IRS has increased focus <br />Unpaid taxes<br />DOL<br />Missed overtime<br />Minimum wage<br />Benefits<br />
  26. 26. Independent Contractor or Employee?<br />Check your independent contractor status <br />Permanency of relationship <br />Degree of control <br />Degree of skill <br />Investment in business <br />Opportunity for profit/loss <br />
  27. 27. Exempt vs. Non-Exempt<br />DOL Fair Labor Standards Act<br />Employees and classifications -<br />Salary test <br />Duties test <br />Primary duties <br />Exercise discretion and independent judgment <br />Administrative Exemption is most commonly litigated<br />Bonus and Regular rate of pay for non-exempt employees<br />Travel and training time<br />
  28. 28. DOL Agenda<br />In 2010 regulatory agenda – proposed strategy to require employers to “find and fix” legal violations <br />No longer – “catch me if you can” <br />Plan – identify and resolve risks of legal violations <br />Prevent – fully implement plan that prevents legal violations <br />Protect - objectives to be met on a regular basis for actual prevention<br />
  29. 29. ERISA<br />Federal law that sets standards for most pension and health plans in private industry (governmental entities, churches are exempt)<br />Overarching principal is to provide protection for those in the plan<br />Responsibilities include:<br />Providing participants with plan information to include plan features and funding; (includes an Summary Plan Description and Summary Annual Report<br />Fiduciary responsibilities for those who manage and control plan assets;<br />Requires plans to establish a grievance and appeals process for participants to get benefits from their plans;<br />Gives participants the right to sue for benefits and breach of fiduciary duties.<br />
  30. 30. ERISA<br />Responsibilities include (cont’d):<br />*COBRA-20 or more employees<br />HIPAA<br />Newborns’ & Mothers’ Health Protection Act-requires insurance to cover a minimum 48 hour hospital stay following childbirth<br />Mental Health Parity Act-mental health covered to be covered like medical surgical benefits with respect to lifetime and annual limits (doesn’t apply to substance abuse/chemical dependency; doesn’t apply to small employer w/2-50 employees; doesn’t apply if the application of parity increases the cost of the plan by at least 1%)<br />Women’s Health and Cancer Rights Act-protections for individuals who elect breast reconstruction in connection with a mastectomy; and must cover certain post-mastectomy benefits<br />
  31. 31. ERISA<br />Responsibilities include (cont’d):<br />5500 Reporting<br />Annual Informational report sent to DOL (who also provides it to the IRS)<br />Required of pension plans, to include 403(b)<br />Welfare benefit plans with 100 or more <br />Self-funded; self insured welfare benefit plans of any size<br />Due by the seventh month following end of the plan year; 2 ½ month extension permitted (but must apply)<br />Must be filed electronically<br />
  32. 32. IRS<br />National Review Program in 2 year<br />Additional IRS agents to perform these “reviews” <br />Reviews will target industry groups to include Non-Profits<br />Reviews to include:<br />Worker classification<br />Fringe Benefits<br />Officer compensation<br />Reimbursed expenses<br />Agents taking a HARD LINE approach in enforcement<br />
  33. 33. OFCCP<br />Charged with enforcing the contractual promise of affirmative action and equal employment opportunity required of those who do business with the Federal Government<br />General rule for affirmative action plans is 50 employees and $50,000 or more in contracts<br />
  34. 34. OFCCP<br />Increased focus on Veteran’s Affirmative Action Plan<br />Policies <br />Focus on recruitment of hiring of veterans<br />Move towards statistical analysis for numerical targets<br />Increased focus on Disabilities Plan <br />Policies<br />Move towards accommodations for applicants – ex. online application system<br />Disability outreach<br />Increased review on pay equity<br />
  35. 35. Take-Aways: Doing More With Less<br />Invest time in compliance-agencies have increased enforcement activities<br />Do it right the first time; there is always a potential cost of mistakes<br />Take advantage of what you are already paying for<br />It may be better to pay now, than pay later<br />Risk of audit could come from your employees <br />
  36. 36. Questions<br />
  37. 37. Contact Information<br />Cyndi Mergele, SPHR, PI<br />Padgett, Stratemann & Co., L.L.P.<br />SAN ANTONIO<br />100 NE Loop 410, Suite 1100<br />San Antonio, Texas 78216-4704<br />210.828.6281<br />AUSTIN<br />811 Barton Springs, Suite 550<br />Austin, Texas 78704-1149<br />512.476.0717<br /><br />