Employers: Keep proper I-9 records avoid fines and penalties

Government statistics show a dramatic increase in enforcement of immigration-related workplace rules since 2009, including initiating a large number of employer audits and assessing millions of dollars in fines.
At the end of 2009, the Immigration and Customs Enforcement Agency or ICE,  which is the enforcement arm of the U.S. Department of Homeland Security, issued audit notices to 1,000 businesses nationwide. Between April and November 2009, ICE initiated almost 1,900 prosecutions against employers for I-9 violations. This is more than three times the number of prosecutions in the same period in 2008.
In fiscal year 2012, ICE hit the following benchmarks relating to I-9 enforcement:

  • There were 520 criminal arrests tied to worksite enforcement investigations, including 240 owners, managers, supervisors, or human resources professionals facing related charges such as harboring or knowingly hiring illegal aliens;
  •  There were 3,004 I-9 Notices served in companies nationwide;
  • There were 495 Final Orders for I-9 related violations, totaling $12.47 million in civil fines.

To put this activity in perspective, in fiscal year 2007 the total number of I-9 Notices of Inspection was 250. Since January 2009, ICE has audited more than 8,000 employers and imposed more than $87 million in fines.
Based on these statistics alone, the importance of proper I-9 record keeping cannot be stressed enough.
Remember that federal regulations call for employers to:

  • Verify the identity and employment authorization of each person hired after Nov. 6, 1986.
  • Complete and retain an I-9 for each employee required to complete the form.

If you have any questions about I-9 forms, regulations surrounding them and the proper method for verifying employee identities, the experts at BCN Services can help.  Contact us at 800-891-9911.

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Lisandra Quinones, HR Administrator

Handling employee requests for reasonable accommodation due to disability

How do you respond to an employee who reports a disability and requests a reasonable accommodation?

Take the case of a long-term employee who has been mostly exemplary but her attendance has recently been poor, she has been frequently tardy and her performance is declining. You meet with her on this matter and she informs you that she has a medical condition that is depriving her of sleep and causing her to be late or absent.  It leaves her so exhausted that she can’t perform her work to normal standards.

What do you do?

If you are an employer with 15 or more employees you are covered by the Americans with Disabilities Act (ADA). Under the ADA, a “disability” is defined as a physical or mental impairment that substantially limits one or more of the individual’s major life activities. Under the ADA regulations, “major life activities” include performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.

In our example, how would you determine if your employee has a disability?  While the Americans With disabilities Amendment Act of 2008 (ADAAA), amended the ADA and makes it easier for an employee to be considered disabled, you are not required to take the employee’s word.   If the disability is not obvious, you may be entitled to seek medical certification from the employee’s physician to determine if the condition qualifies as a disability. (Note: you should never contact the doctor yourself.  BCN Services would conduct that review.)

Let’s assume that the employee’s doctor states that the medical condition is significant and would be considered chronic. It affects the employee’s “major life activity” of sleep. The employee has been prescribed medication and will likely be improving but it may take 3 to 4 months to adjust the level of medication to allow the employee to get back to normal. It is the doctor’s opinion that the employee may have difficulty getting to work on time, may miss a day or two of work periodically suffering from sleep deprivation and may have difficulty focusing at work at times.

You now know that the  medical condition substantially limits your employee’s ability to sleep and you are required under the ADA to explore a reasonable accommodation in an interactive process with the employee.  You may reject the employee’s proposed accommodation if doing so would impose an undue hardship on the operation of your business. You may still require the employee to be qualified to perform the essential job functions with or without accommodation.

How can you determine if an accommodation is an undue hardship?  Undue hardship means that an accommodation would be unduly costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business. Among the factors to be considered are the cost of the accommodation and the employer’s size, financial resources, and the nature and structure of its operation.

According to the Equal Employment Opportunity commission (EEOC), if providing an accommodation would be an undue hardship, the employer must try to find another way to accommodate the employee. For example, if the undue hardship is due to cost, the employer must seek funding from an outside source, such as a vocational rehabilitation agency, or consider whether the cost can be offset by state or federal tax credits or deductions.

If there is no reasonable accommodation, it is possible to terminate the employee. But to limit potential liability, you should have a thorough discussion with the employee and seek guidance from BCN Services before making that decision.

In our example a scheduling change would be one way to accommodate the employee. The employer might offer a flexible schedule allowing the employee to start work at 10 a.m. instead of 8 a.m. If the employee is a manager that opens the business, this might not be a reasonable accommodation.

Explore other options with the employee. She may not like an accommodation of transitioning to night manager, for example, but it could be a reasonable option for your business. Another accommodation could be to provide the employee with unpaid leave until the condition is controlled. If her work performance is significantly impacted you may find no option but to offer unpaid leave until her condition is corrected. That could be considered a reasonable accommodation.

How long would an unpaid leave be reasonable? According to the EEOC and recent court rulings, a leave estimated by the physician to be of a specific time period and not indefinite would likely be considered reasonable.

Each case must be evaluated on its own merits and should be based on the company’s size, resources and the nature of the business.

While all disabilities are not eligible under the Family and Medical leave Act (FMLA), some are. Employers with more than 50 employees may have to offer the employee a Family Medical Leave. In our scenario,  if the business has more than 50 employees the employee could use Family Medical Leave intermittently or consecutively while her medication was being regulated. If the employee is eligible for FMLA, she would be allowed up to 12 weeks of leave. If she exhausted her 12 weeks of FMLA, the ADA rules might still provide her with accommodations.

In other circumstances the FMLA and the ADA might cover an employee at the same time. To complicate the issue further,  ADA, FMLA and workers’ compensation injuries can be intertwined in the same case but that is a blog for another day!

The EEOC has publically stated that ADA enforcement is a primary focus of its compliance efforts. If you have a situation where an employee or applicant tells you that he or she has a disability and needs an accommodation, please contact your Partnership Manager or the Human Resources department at BCN Services for assistance and guidance on this tricky area of employment law.

Follow the HR HeaRtbeat.com blog for updates on this topic and others relating to employee disabilities.  Contact BCN Services at 800-891-9911 or click here to be directed to our contact us page.

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Jeff Walsh, Partnership Manager

Small Business Health Options Program (SHOP) delayed until January 1, 2015

On March 11, 2013 The U.S. Department of Health and Human Services (HHS) published a proposal for delaying the Small Business Health Options Program (SHOP) for small businesses until January 1, 2015.  This proposal is expected to be approved.

SHOP is an insurance exchange for businesses that is part of the Affordable Health Care Act (ACA), the new federal health care law.

This delay in SHOP would affect the 33 states where the health insurance exchange will be run on a federal level.  HHS reports that administrative delays and operational challenges have prevented them from securing the variety of affordable care options for small businesses to offer to their employees beginning January 1, 2014.  The agency has advised the 17 States that have opted to manage their own exchange programs that they may either move forward with the full version of SHOP for January 1, 2014, or delay their programs until January 1, 2015.

Under the new proposed timeline, SHOP will be available to small businesses and their employees for open enrollment beginning October 1, 2014 for a January 1, 2015 effective date.  HHS has announced that one plan option will be made available to small employers for the original January 1, 2014 effective date, but it is still unknown which health carriers will be involved, what the plan design will look like and what the monthly premium cost will be.

The SHOP weighed heavily during initial debates to the Affordable Care Act, with supporters citing that the SHOP option would offer small businesses opportunities historically afforded to large businesses.  States will decide whether “small businesses” will be classified as fewer than 100 employees, or fewer than 50 employees.

SHOP will allow small business employees to choose from a variety of health plans through multiple carriers that will best suit their family’s needs and budget.  The SHOP will simplify administration on the employer’s end by uniting all plan premiums into one billing statement for the employer to pay on a monthly basis.

SHOP is designed to simplify decision-making for employees by offering side-by-side comparisons for the multiple options available to them.  Online access, and customer support, will provide employees with the tools they will need to make an informed decision about the quality and cost of individual or the family’s health plan choice.

Within the SHOP program, insurers will no longer be able to deny enrollment to employees with unfavorable health histories or deny treatment for pre-existing conditions.  Premiums will no longer be based on employees’ health histories or the industry for which their company does business.  Premiums can, however, be based on ages and smoking histories of employees that are subscribing to the SHOP plans.

Many view this as a very disappointing set-back to the implementation of ACA and the promise of “affordable care” and multiple options and choices.  With the individual mandate still set for January 1, 2014, it will be interesting to see if further proposed delays are announced.  Those individual plan options are scheduled to be available for open enrollment October 1, 2013.

Yet, only months away, there has still been little guidance as to how those individual options will be structured, what carriers will offer them, how many options there will be or premium rates, among other concerns.

The wait has been stressful for all business owners while they try to anticipate their insurance options and costs for 2014.  BCN  Services will continue to evaluate options and proactively communicate them to its clients.

Follow the HR HeaRtbeat.com blog for updates on this topic and others relating to the Affordable Care Act.  Contact BCN Services for further discussion and guidance as this new law is implemented.  Contact us at 800-891-9911 or visit www.bcnservices.com.

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Frank Lewandowski, Partnership Manager