In this Issue:

• Managing Difficult Employees
• Understanding Health Insurance Marketplaces
• E-Verify: Frequently Asked Questions
• Workplace Posters: Self-Audit Checklist
• Summer 2013 HR Compliance Calendar

  
  

As an employer, you rely on your employees to help you run your business effectively. From time to time, those employees can present challenges such as missed work, an inability to meet deadlines, and failure to follow company policy. The following are a few examples of common problems found in the workplace along with tips on how to address them.

Issue #1: Arriving Late to Work:

Beyond the monetary costs associated with missed work, absenteeism and tardiness can also inconvenience customers and co-workers, slow productivity, and impact employee morale.

Example:

Susan has worked at the front desk of a medical office for many years. It is company policy to arrive on time for each scheduled shift, which is typically 30-minutes prior to the first patient appointment. Last week, Susan arrived 10-minutes late. In this particular instance she called her manager, Eileen, to let her know that she was stuck in traffic. This week, Susan was 15-minutes late but never called Eileen to let her know. Today, Susan arrived 25-minutes late, leaving a patient waiting outside because no one was at the office to greet her.

Addressing the issue:

Eileen plans to give Susan a verbal warning and schedules a meeting with her as soon as possible to discuss the issue. Eileen is prepared with documentation of Susan's tardiness and lets Susan know that she is expected to arrive to work on time. During the meeting, Eileen reviews the company's attendance policy and emphasizes the importance of arriving to work on time. As with all disciplinary meetings, Eileen documents the verbal warning and has Susan sign it to indicate her receipt and understanding.

Next steps:

If Susan continues to arrive late to work following the verbal warning, more formal disciplinary action may be needed, such as a written warning. The written warning should include a review of the previous discussion, outline the expectations that were made and specifically reference the instances in which Susan was late. Also, the warning should clearly state attendance expectations and remind Susan of the impacts to the business when she fails to make it to work on time. Eileen should make it clear to Susan that continued tardiness could lead to more serious forms of disciplinary action.

Issue #2: Failure to Meet Performance Expectations:

Performance management is an ongoing process aimed at setting clear performance goals and providing employees with the tools and resources needed to be successful. Even with this type of support, some employees may struggle to meet performance expectations. When this happens, the manager and employee should work together to openly discuss performance issues and collectively develop solutions for improvement.

Example:

Matt works for a marketing firm as an entry-level marketing assistant handling the creation of draft client presentations and managing the database for the company's email blasts. Initially Matt's manager, Rick, was impressed with his initiative and attention to detail. However, lately Matt's performance has been slipping. Two weeks ago he was late submitting a key client presentation and this week, Rick found a critical error when Matt updated the client database.

Addressing the Issue:

Rick arranges a meeting with Matt as soon as possible. He knows a prompt response to poor performance is critical since it can quickly address minor issues before they become more problematic. To avoid putting Matt on the defensive, Rick starts the meeting with a positive review of Matt's strengths to date. Then he covers the problem areas and the impact these issues have on the company and its clients. He also covers the steps that are expected of Matt in order to correct the problem. Rick ends the meeting on a positive note and confirms Matt's understanding of the discussion and the goals that have been outlined. As with any meeting, Rick documents the discussion and has Matt sign the documentation.

Next steps:

Rick plans to meet with Matt in the coming weeks to ensure his performance remains on track. If Matt continues to fail to meet performance expectations, further action may need to be taken. Rick should also consider whether Matt needs additional training and if his performance expectations are appropriate. It is important to note that there may be times when an employee does not have the necessary skills or knowledge to succeed in a position. In these instances, it is a best practice to follow the progressive discipline process with clear documentation.

Issue #3: Social Media Use:

The rapid rise in social media use has prompted many employers to develop policies prohibiting employees from tarnishing the company's reputation through social media postings and limiting the use of social media during work time. However, the National Labor Relations Board (NLRB) has scrutinized employers' attempts to control the information that employees post to social media. Such attempts may not interfere with employees' right to act together to improve wages and working conditions.

Example:

Jessica works for ABC Technical Systems as an administrative assistant, answering the phones, greeting clients, and drafting correspondence. One of the company's sales reps came across a Tweet Jessica posted. In the post, Jessica made it clear she didn't think one of the company's products was valuable to its customers.

Addressing the issue:

Prior to taking any action, Bill, Jessica's manager, sits down with the company's human resources representative to discuss the issue. This is the first time the company has had to deal with something like this, so they decide it's time to create a social media policy. When drafting the policy they want to be sure that it does not:

• Discipline employees who use social media for "concerted" or "protected activity" as defined by Section 7 of the National Labor Relation Act (NLRA); and
• Use overbroad prohibitions that could restrict the employees' rights to discuss working conditions and wages.

Among other things, they find it prudent to address the following: inappropriate and unacceptable use of social media (while avoiding overbroad statements that could restrict employees from exercising their rights under the NLRA); a reminder that social media postings are public, and; a request that employees include disclaimers indicating that their views and opinions are those of the employee and not the company. They plan to have the policy reviewed by legal counsel and then train managers to ensure they understand how to properly enforce it.

Next Steps:

ABC Technical Systems distributes the new social media policy and asks all employees to sign it indicating their receipt and understanding. The company also holds a meeting with all employees to explain what is acceptable and unacceptable social media use and the importance of including appropriate disclaimers when posting information online.

Conclusion:

Employers should consider what policies and procedures they have in place prior to addressing the issues covered above. It's important that all policies and procedures are followed on a consistent basis. A comprehensive employee handbook is a great starting point for setting clear expectations. Employers should have all employees review and acknowledge the handbook upon hire.

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The Patient Protection and Affordable Care Act (Pub. L. No. 111-148), commonly referred to as the "ACA" or "Health Care Reform," is creating a lot of buzz these days. Many questions still linger about some of the impacts the ACA will ultimately have on employers and their employees as implementation of the employer mandate has been delayed and updates and regulations implementing the ACA’s various provisions are continuing to be released. One of the biggest areas that employers have questions about is the Health Insurance Marketplace and what impact it may have on their own plan offering and their employees.

About the Health Insurance Marketplaces:

The ACA requires that states establish a Health Insurance Marketplace, also known as "Health Insurance Exchange" in order to facilitate the purchase of qualified health plans by individuals and small businesses. These are competitive Marketplaces where both individuals and small employers can obtain health coverage from various insurance carriers.

Small Business Health Options Program Marketplace:

The portion of the Health Insurance Marketplace that will be dedicated to small employers is called the Small Business Health Options Program or "SHOP". Starting in 2014, small employers (those with 50 or fewer full-time equivalent (FTE) employees) can use the SHOP Marketplace to compare pricing and plans and offer coverage to their employees if they choose. There will be a SHOP Marketplace in each state; employers must have an office or employee work site within the SHOP's service area to use that particular SHOP. Beginning in 2016, all SHOPs will be available to employers with up to 100 FTEs.

Timeline:

States may set up their own Marketplace, work with other states, or partner with the federal government. State Marketplaces are scheduled to be operational by January 1, 2014; however, the Department of Health and Human Services (HHS) will establish and operate a federal Marketplace for any states that do not establish their own. Individuals will be able to enroll for coverage through the Marketplace beginning October 1, 2013, with initial coverage effective January 1, 2014.

Advantages for Employers:

The SHOP Marketplace is intended to give small businesses some of the advantages that large employers have historically experienced related to group health insurance coverage, such as greater purchasing power, the ability to pool risk, and more choices among health plans. The plans available through the Marketplace will offer comprehensive coverage and will allow employers and individuals to compare insurance options based on a variety of important features such as price, benefits or quality.

Employer Eligibility:

Employers with up to 100 employees will be eligible to participate in the SHOP Marketplace beginning in 2014, although states can limit participation to businesses with 50 or fewer employees until 2016. Thereafter, all states will need to allow employers with up to 100 employees to participate. Employers can shop the Marketplace independently or use their existing insurance broker to do so. Through the Marketplace, employers can review pricing and coverage comparisons, complete an application and choose the level of coverage that suits their budget, business needs and employees.

Marketplace Notification Requirement:

All employers, regardless of whether they provide health insurance, must provide employees and new hires with a written notification about the Health Insurance Marketplace. All employees must receive the notice regardless of their status as full-time or part-time or their eligibility for coverage under the employer's plan. This notice must be provided to all employees by October 1, 2013 and new hires must receive the notice within 14 days of hire.

The notice is intended to inform employees of the availability of the Health Insurance Marketplace in their state and any potential impact of purchasing insurance through the Marketplace. The Department of Labor has also released two model notices to assist employers with this notification requirement: one for employers that offer a health plan and one for employers that do not offer a health plan. These notices are available for download in the Forms & Documents section of HR411’s HR Library.

The notice can be furnished by first-class mail, or electronically in a manner that meets the requirements of the DOL's electronic disclosure safe harbor rules. There can be no charge or costs to employees for furnishing the notice.

Getting Ready:

Employers should start preparing the model Marketplace notices outlined above as well as consider taking the following steps:

• Understand common health insurance terms: Employers should have a basic understanding of the difference between premiums and out-of-pocket expenses (such as deductibles and copays). Employers should consider comparing these costs to understand the overall value of the plan being offered. The ACA requires group health plans to make available a glossary of terms commonly used in health insurance coverage, which can be a good point of reference for both employers and employees.
  
  
• Learn about different types of health insurance: Various levels of coverage will be offered through the Marketplace. Employers should research the types of health insurance plans that will likely be offered in order to select the coverage that is right for their business and employees.
  
  
• Decide on a budget: Employers should know how much money they will allocate toward health benefits prior to researching plans within the Marketplace. It's also important to consider how much an employee will have to pay to participate in the employer's plan. Employers may also want to factor in potential tax credits (such as the small business health care tax credit) that may be available for offering certain types of health coverage.
  
  
• Ask for help: Many employers already use a broker or health insurance agent to assist in designing and implementing a benefits program. Brokers can help figure out the various options that are available through the Marketplace. Brokers do not work for just one insurance company so they can usually offer a variety of options based on the employer's needs and budget.

For more information on the Health Insurance Marketplaces and the ACA, visit HealthCare.gov and ADP.com/healthcare. Employers may also sign up to receive email or text updates from HealthCare.gov regarding key dates, news and information about the Marketplace.

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More than 400,000 employers participate in E-Verify, according to U.S. Citizenship and Immigration Services. While many of these employers are doing so voluntarily, a growing number of jurisdictions are requiring employers to use E-Verify. Whether your company participates voluntarily or because you are required to do so, it is important to understand the responsibilities that come with using the program. The following are answers to some of the most frequently asked questions concerning E-Verify.

Q: What is E-Verify?

A: E-Verify is a free Internet-based program that checks whether the information on a new hire's Form I-9 matches government records in Department of Homeland Security (DHS), Social Security Administration (SSA), and Department of State (DOS) databases to confirm whether the new hire is authorized to work in the United States.

Q: Which employers are required to use E-Verify?

A: Several states have enacted E-Verify requirements. Some state laws apply to all employers while others are limited to state contractors. The states that require private employers to use E-Verify include: Alabama, Arizona, Georgia (employers with 11 or more employees), Mississippi, North Carolina (employers with 25 or more employees), and South Carolina. In Tennessee, employers with 6 or more employees must either use E-Verify or request a copy of certain documents from the employee to confirm work eligibility.

There is currently no federal requirement for private employers to use E-Verify, but certain federal contractors are required to participate.

Q: How do I get started?

A: To enroll in E-Verify, visit the E-Verify website, provide some basic information about your organization, and agree to follow the terms of the program. After your organization is enrolled, you must register one or more individuals within your company who will use the E-Verify system. You must also post two notices in your workplace: the E-Verify Participation Poster and the Right to Work Poster. These notices must be posted in both English and Spanish and are available for download from the State & Federal Resources section of HR411. For more information on poster requirements, see Workplace Posters: Self-Audit Checklist.

Q: What is the E-Verify process like?

A: The E-Verify process can begin once both the employer and the new hire have completed their sections of Form I-9. Once an I-9 has been completed, you can create a case in E-Verify, which requires inputting information provided on the new hire's Form I-9. Once E-Verify provides a final case result, the employer closes the case. If the system is unable to confirm the employee's work authorization immediately, one of two responses will appear: "Verification in Process," or "Tentative Non-confirmation" (TNC). A TNC occurs when the I-9 information entered fails to match government records. There are specific requirements and procedures to follow when a TNC result is returned, as described below.

Q: What happens if there is a TNC result?

A: In the event a TNC result is returned, the employer must notify the employee as soon as possible via the Notice to Employee of Tentative Non-confirmation. Sample TNC Notices and Referral Letters are available from DHS here. The employer must then review the notice with the employee in private, ask whether the employee contests the tentative result (the employee has 10 business days to notify you whether they contest the result), note the employee's decision on the notice, and ask the employee to sign and date the notice. The signed notice is to be retained with the employee's I-9 and a copy must be provided to the employee.

If the employee contests the TNC, the employer must refer him or her to the SSA or DHS. Employers are prohibited from taking any adverse action against an employee who is contesting a TNC. Employers should check the E-Verify system periodically to see whether the SSA or DHS has provided a final case status.

Q: When can I begin an E-Verify query on a new hire?

A: Employers must wait for the employee to accept a job offer and for the Form I-9 to be completed (by employer and employee) before initiating an E-Verify query. However, employers must make e-verification inquiries no later than the third business day after the new hire begins working for pay. This is the same deadline for completing section 2 of the I-9, so employers should plan accordingly.

Q: Can I use E-Verify on current employees?

A: No, the use of E-Verify is limited to new hires only.

Q: Can I use E-Verify for some employees but not others?

A: No, employers who participate in the program must generally use E-Verify for all new hires. However, if your company has multiple locations, you may choose to use E-Verify throughout your company, or you may limit your company's participation to certain locations. In other words, while you may be permitted to elect to participate in E-Verify on a site-by-site basis, your company must use E-Verify for all newly hired employees at each participating site. 

Q; Does participating in E-Verify eliminate the I-9 requirement?

A: No, employers must continue to complete and retain an I-9 form for all new hires. E-Verify is an additional tool for confirming authorization to work in the United States.

Q: I thought that providing a Social Security Number (SSN) on the I-9 Form is strictly voluntary, but E-Verify requires an SSN. How do I obtain this information?

A: While providing an SSN on Form I-9 is usually voluntary, an SSN is required by employers who use E-Verify. Therefore, if you use E-Verify, all newly hired employees must provide a Social Security number on the I-9.

Q: What happens if I make a mistake when I enter information in E-Verify?

A: If an employer makes a typographical error or entered incorrect data, the employer should close the case and create a new case for the employee with the correct information.

Q: I started a case in E-Verify and was prompted to perform photo matching. What is photo matching?

A: Photo matching is a tool that allows an employer to compare a new hire's photo ID with a photo stored in government databases and displayed in E-Verify. Photo matching is activated automatically in E-Verify if an employee has presented, with his or her Form I-9, a:

• I-551, (Permanent Resident Card)
• Form I-766, (Employment Authorization Document), or
• U.S. passport or passport card

Currently, these are the only documents for which photo matching is available.

Q: Can I have a policy that I will only accept the three documents in which photo matching is available in E-Verify?

A: No. An employer may not require the employee to present certain documents in order to verify employment eligibility. The employee has the right to choose which documents to present regardless of whether the employer participates in E-Verify, provided they are on the I-9's List of Acceptable Documents (see the last page of the form).

Q: How long must I participate in the E-Verify program?

A: An employer using the E-Verify system voluntarily may cancel their participation at any time. Employers can request to withdraw their participation via the E-Verify website.

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Employers are required to post a variety of notices for employees, and in some cases applicants, to view in the workplace. The general purpose of these posters is to notify employees of their rights and responsibilities under federal, state, and local laws. In addition to posting all required notices, employers may need to ensure that notices meet certain size and format requirements. Violations of these requirements can result in fines, so it is important for employers to ensure that all required notices are posted in accordance with federal, state, and local rules.

The following checklist is designed to help you review your poster practices:

Have you posted all applicable federal notices?

All employers must post the following federal notices:

• Minimum Wage
• Equal Employment Opportunity is the Law
• Your Rights under USERRA
• Job Safety and Health Protection
• Employee Polygraph Protection Act

These posters are available for download in the State & Federal Resources section of our website.

Depending on your size and industry as well as other factors, there may be additional posters required at the federal level. For example, employers that participate in E-Verify must post certain notices. See E-Verify: Frequently Asked Questions. In addition, other posters may be recommended, but not explicitly required.

Have you posted all applicable state and local notices?

Many states and local jurisdictions have requirements to post certain notices on minimum wage, nondiscrimination, workers' compensation, unemployment insurance, health and safety, leaves of absence, smoking, and other employee-related issues. Some states also require employers to post notices if they engage in certain activity, such as drug testing or electronic monitoring.

It is important to remember that any poster required by state or local law must be posted in addition to any required federal poster, even if they cover the same topic. For example, if you are required to post a state minimum wage notice, you must also post the federal Minimum Wage notice. State notices are available for download in the State & Federal Resources section of our website.

Are your posters up to date?

Posters can change as a result of a new law or regulation, new contact information for the government agency, or simply a redesign. A best practice is to check for updates regularly. Most posters contain a revision date at the top or bottom of the notice, which will help determine if the most recent notice is posted in your workplace. Note: Employers that subscribe to ADP's Poster Compliance Service will receive new posters when mandatory changes occur.

Are your notices posted "conspicuously"?

In general, posters must be displayed conspicuously in areas that are frequented by employees, such as break rooms or time clock locations. Some laws (e.g. Employee Polygraph Protection Act, the Family and Medical Leave Act, and Equal Employment Opportunity laws) require notices to be displayed so that they are easily visible to both applicants and employees. Employers should choose poster locations accordingly.

Are notices posted at each worksite?

If you have employees at more than one worksite, you are generally required to post required notices at each location. A best practice is to designate an individual at each worksite who is responsible for ensuring required notices are posted.

Are notices in other languages posted when required?

Some laws require employers to post employee notices in English as well as other languages. For example, the Family and Leave Act (FMLA) requires employers with 50 or more employees to post an FMLA notice. If their workforce is comprised of a significant portion of workers who are not proficient in English, the notice must also be posted in the language spoken by employees. Even if not required to do so, it is best a practice to post notices in other languages when a significant portion of your workforce isn't proficient in English. Federal and state agencies typically publish notices in multiple languages.

Are notices posted in the proper format?

Some posters must be printed on certain size paper or in a certain font type and size. If you receive your notices from ADP's poster service or directly from the federal or state agency, they will be printed in the proper format. However, if you print posters using your own printer, be sure it is set to meet the required format.

Are defaced or damaged posters replaced promptly?

If any poster is defaced, damaged, or removed, it should be replaced as soon as possible.

Have you subscribed to ADP's Poster Compliance Service?

ADP offers a service that provides clients with their required labor law posters. The service also includes automatic updating and shipment of new posters whenever mandatory changes occur in labor law posting requirements. Contact your Payroll Service Center for more information.

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Below is a summary of several new compliance requirements that took effect recently or will take effect over the next few months.

• 7/1 – Hours-of-service rules for truck drivers revised. Under the new federal rule, the maximum number of hours a truck driver can work within a 7-day period will be reduced to an average of 70 hours. In addition, truck drivers must take a break of at least 30 minutes after eight hours of work.
  
  
• 7/1 – California changes limit on garnishments. A new law increases the amount of workers' wages that are exempt from garnishments for a consumer debt.
  
  
• 7/1 – Colorado restricts use of credit reports. Employers are prohibited from using credit reports to make employment decisions unless certain conditions are met.
  
  
• 7/1 – Georgia requires E-Verify. Employers with 11 to 99 employees must use E-Verify to confirm that new hires are authorized to work in the United States. Larger employers in Georgia were required to use E-Verify starting in 2012.
  
  
• 7/1 – Kansas expands list of permitted deductions. The list of deductions that Kansas employers may make to employees’ wages has been expanded.
  
  
• 7/1 – North Carolina requires E-Verify. Employers with 25 to 99 employees must use E-Verify to confirm that new hires are authorized to work in the United States. Larger employers in North Carolina are already subject to the E-Verify requirement.
   
• 7/1 – Tennessee prevents employers from prohibiting guns in parking lots. Employers are required to allow individuals with valid permits to store firearms in their privately owned vehicles parked on company parking lots. 
  
  
• 7/1 – Wyoming changes rules on vacation payout at termination. State law is amended to permit employers to exclude unused vacation from a departing employee's final paycheck as long as certain conditions are met. 
  
  
• 7/28 – Washington bars requests for social media passwords. Employers are prohibited from asking or requiring applicants or employees to disclose login information for their personal social networking accounts.
  
  
• 8/1 – Alabama restricts employers from banning guns in parking lots. Employers are prohibited from banning the transportation or storage of firearms in employees’ privately owned vehicles parked in company parking lots.
  
  
• 8/1 – Louisiana adds new protection from discrimination for veterans. Employers are prohibited from taking adverse action against veterans for taking time away from work to attend medical appointments necessary to meet the requirements to receive veterans benefits.
  
  
• 8/1 – Minnesota permits same-sex couples to marry. Individuals who enter same-sex marriage are entitled to the same benefits, rights, and responsibilities of opposite-sex spouses.
  
  
• 8/1 – Rhode Island permits same-sex couples to marry. Individuals who enter same-sex marriages are guaranteed the same rights, benefits, protections, and responsibilities as those in opposite-sex marriages and same-sex civil unions.
  
  
• 8/7 – Colorado extends reach of FMLA to civil unions. The Family Care Act requires employers who are covered by the federal Family and Medical Leave Act (FMLA) to grant leave to employees to care for their partner in a civil union or a domestic partnership.
  
  
• 8/15 – Arkansas bars requests for social media passwords. Employers are prohibited from asking applicants or employees for their username and password to their social media account.
  
  
• 10/1 – ACA Marketplace Notice due. Employers must provide a notice concerning the availability of the Health Insurance Marketplace in writing to all existing employees no later than October 1, 2013, and to each new employee at the time of hire.
  
  
• 10/1 – Connecticut expands employee access to personnel records. Requirements for employers to provide current and former employees with access to their personnel files are clarified and expanded.
  
  
• 10/1 – Montana adds overtime exemption for computer employees. Certain computer employees are exempt from the state’s overtime requirements if certain tests are met.
  
  
• 10/1 – Nevada restricts use of credit reports. Employers are barred from requesting, requiring, or using applicants’ or employees’ credit reports to make employment decisions, except in a few limited situations.
  
  
• 10/1 – Nevada prohibits requests for social media passwords. Employers are prohibited from asking or requiring applicants or employees to disclose login information for their personal social media accounts.

Details concerning each of these changes can be found in the Compliance Updates section of HR411.

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