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Answer:
A manager or supervisor who accepts unsolicited resumes increases the employer's potential liability for discrimination claims. If you consider one unsolicited resume as a job application, then you must consider all resumes in that job category as applications, and keep them for the required length of time. The U.S. Equal Employment Opportunity Commission requires employers to retain all applications (including resumes) for one year from the date the record was made or the personnel action was taken.
Answer:
The U.S. Equal Employment Opportunity Commission takes the position that consideration of arrest records is a violation of Title VII of the federal Civil Rights Act.
Answer:
If safety or potential injuries are the criteria that exclude the individual, the person's physical or mental impairment must meet the "direct threat" test under the Americans with Disabilities Act (ADA). The "direct threat" arises when the person poses a significant risk of substantial harm to himself or herself or others and the risk cannot be reduced below the direct threat level through reasonable accommodation. The risk must be substantial and have a high probability of imminent harm. The employer must base its analysis on the opinion of a health care provider with experience or training in the relevant area of expertise. The bottom line is that this is a very difficult standard to meet for employers so disqualifying a candidate on this basis is very risky.
I-9 Administration
Answer:
The following actions by an employer are classified as "documentation abuse:"
- Requiring the individual to produce specific documents rather than permitting the individual to produce any of the acceptable documents from List A or Lists B and C. For example, requiring the individual to produce a Social Security card and driver's license is documentation abuse.
- Asking the individual to produce additional documents other than those that are acceptable. For example, asking the individual for a driver's license in addition to a passport is documentation abuse.
- Refusing to accept documents that appear genuine on their face.
Answer:
Reexamine and reverify work eligibility for current employees on or before the expiration date, if any, of work authorization. The one exception to the reverification requirement, as noted above, is if the employee presented a Form I-551 or "green card" as a List A document. A green card must be unexpired on the date of hire, but you do not need to reverify work authorization when the green card expires, because the employment authorization of a permanent resident (a green card holder) does not expire. Complete a new Form I-9 or Section 3 of the original Form I-9 when you reverify. Create a tickler system to alert the company before work authorization expires.
Answer:
Keep all Forms I-9 in a file separate from personnel files. Doing so not only reduces potential sources of bias, but also provides added protection to you in the event of an audit. It is more convenient and far safer to give an auditor a single file with all Forms I-9 than it is to open all personnel files for inspection by ICE or another government agency.
Answer:
Three years after the date of hire or one year after termination, whichever is later. Think of the 3-2-1 rule. Keep the Form I-9 at least 3 years. However, if the employee works at least 2 years, keep the Form I-9 for 1 year after the employee leaves. Never discard the Form I-9 of a current employee.
Leave law and paid time off issues
Answer:
In some western states, this "use it or lose it" policy/practice is illegal. In other states, the legality of such policies/practices are dependent on how you develop and enforce your policy.
Answer:
Notice of the fitness-for-duty medical certification must be included in the designation notice that the employer gives to the employee. If you use DOL form WH-382 ("Designation Notice"), you will satisfy this requirement. Check with your advisor as to the requirements for utilizing a fitness-for-duty medical certification as there are detailed regulatory requirements. One important regulatory provision dictates that an employer may not delay reinstatement while seeking clarification information on a certification that an employee has provided.
Answer:
Under federal FMLA and most western states, you are allowed to count towards an employee's leave entitlement leave time related to a work-related medical condition. However, you should check with your advisor as there may be state restrictions/prohibitions on this practice. For example, under Oregon OFLA, a serious health condition doesn't include work-related injuries unless the employee rejects a bona fide offer of modified duty work
Answer:
Under federal FMLA (and some state leave laws), an employer may temporarily transfer an employee to alternative position with equivalent pay and benefits that better accommodates recurring periods of leave. However, this is a very sensitive (and potentially risky) practice. In addition, some states (including Oregon) require that the employee agree to the temporary transfer to a position of equivalent benefits and pay.
Wage and Hour Practices
Answer:
You must pay for "all hours worked." The Fair Labor Standards Act defines "hours work" as including all time during which an employee is "suffered or permitted" to work. Therefore, even though time work may not be expressly authorized, you may nonetheless be required to pay your employee for it.
Answer:
In most western states, direct deposit is only allowed with the permission of the employee.
Answer:
Meal and rest period rules are governed by state law. With very limited exceptions, state law requires that employees working a sufficient number of hours receive an uninterrupted meal period. Paying for the meal period does not typically relieve you of your obligation to provide an uninterrupted meal period. Some states have meal waiver provisions but these are very limited and employers should consult their advisor to ensure that the proper procedures are followed.
There are so many complex variables in employing people, so many labor laws, so many compliance issues that you have to stay sharp. It's becoming almost too hard for any employer to do it alone. This is where Vigilant comes in.
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