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HR Matters
HR Matters - August 2007 - Volume XI, Issue 124
August 30, 2007
LABOR & EMPLOYMENT NEWSEmployers Must File Revised EEO-1 Report in 2007. For the first time in 40 years, the EEOC has revised the EEO-1 Report. Private employers or enterprises with 100 or more employees (excluding primary and secondary school systems and institutions of higher education) are required to submit this report annually. Employers will be required to file the revised report in calendar year 2007 by September 30, 2007. For assistance regarding the new EEO-1 reporting requirements, please contact a GH&R Labor & Employment attorney.
Pregnancy Discrimination Alert . The Ohio Civil Rights Commission (OCRC) is seeking to significantly alter its position on how much time off of work an employer must provide pregnant employees. The current regulations provide that employers must provide a “reasonable” amount of time off of work. The OCRC seeks to require that all employers provide at least 12 weeks off of work for pregnancy-related leave. Policies or practices of providing less than 12 weeks of leave would be “presumed to have a disparate impact on women and constitutes unlawful sex discrimination unless justified by business necessity.” The new regulation would cover ALL pregnant employees, including those not covered by the FMLA. We will keep you posted on the status of this important issue as things develop.
WORKPLACE HEALTH & SAFETY NEWS
“Voluntary Abandonment” Defense Requires Violation of a Written Workplace Rule . A car struck a supermarket cashier while he was working in a parking lot. The cashier missed two days of work, and then returned to his regular duties. Before and after the accident, the cashier failed to balance his drawer at the end of the day. The cashier received progressive discipline pursuant to the supermarket’s “Cashier Shortage/Overage” policy. The shortages continued, and the supermarket fired the cashier 14 months after his accident. The cashier then saw a doctor who certified that the cashier was temporarily disabled. A District Hearing Officer approved the cashier’s request for temporary total disability benefits. However, a Staff Hearing Officer denied the benefits because he found that the cashier had voluntarily abandoned his job since he was fired for cash shortages. After the Commission refused the cashier’s appeal of the Staff Hearing Officer’s order, the cashier filed an appeal with the Ohio Court of Appeals for Franklin County. The Court overruled the Commission’s decision that the cashier had voluntarily abandoned his job because the supermarket had failed to give the cashier a written copy of the “Cashier Shortage/Overage” policy before firing him. The Court noted that an injured worker must receive a written copy of workplace rules to establish a “voluntary abandonment” defense. (State ex rel. Detremblay v. Indus. Comm’n)
IMMIGRATION NEWS
New Rules on “No-Match” Letters . On September 14, 2007, new rules impose additional responsibilities on an employer’s response to a Social Security Administration (SSA) “no-match” letter. The SSA routinely sends out a “no match” letter when the combination of name and social security number submitted for an employee fails to match. Under the new rules, an employer can be found in violation of federal immigration laws if they ignore the “no-match” letters and fail to take corrective steps. Corrective steps include, reviewing records for clerical errors or even terminating an employee if the discrepancy cannot be resolved within a specific timeframe. Under a new “safe harbor” provision, employers who make a “good faith” effort to resolve the discrepancies may not be held liable for federal immigration violations. Given these new guidelines, employers should contact a GH&R Immigration attorney to review their current practices when responding to “no match” letters and retaining social security information.
EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION
EB Question of the Month: Do Change in Control Agreements need to be reviewed by December 31, 2007? Yes - - they need to be reviewed to ensure that they are either exempt from the requirements of Section 409A, or if not exempt, that they comply with the 409A regulations. Generally, change in control agreements provide certain benefits to key employees in the event their employment is terminated within a specified time period after a “change in control” of the company. Many of these agreements provide for severance pay that may exceed limits on the amount and payment period allowed under Section 409A. All change in control agreements should be reviewed by a GH&R Employee Benefits attorney and amended, if necessary, to comply with 409A by December 31, 2007.
Cafeteria Plan Regulations. The IRS has issued proposed cafeteria plan regulations. The proposed rules expand and clarify what must be included in the written plan document, such as specifically describing all benefits and setting rules for eligibility. The rules also allow new optional provisions to be included in a cafeteria plan, such as payment of COBRA premiums and adoption assistance programs. The proposed regulations state that the penalty for failure to comply with the written plan document requirements or failure to operate in accordance with the plan document or regulations will result in the plan being deemed not a cafeteria plan and the employee’s entire election will be included in their gross income. Generally, these rules will not be effective until January 1, 2009; however, employers that want to implement regulations early can rely on them immediately.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.