Here is another great article provided by Ray Temple from PreventiveHR.  Every month Ray sends out a very in-depth newsletter addressing major concerns in the HR world including legislation changes and best practices, visit PreventiveHR.com for more information on how to receive the monthly newsletters.

The ADA was drafted broadly to provide disabled Americans the opportunity for gainful employment. Congress recognized that some disabilities, by their nature, are special and pose safety risks. Drug and alcohol addiction are two such disabilities. The ADA requires employers to walk a fine line between enforcing reasonable workplace safety and behavioral rules and making accommodations for those who are addicted.

As a general rule, employers are allowed to enforce reasonable workplace rules against coming to work under the influence and against disruptive behavior, even if that behavior may be associated with an addiction to drugs or alcohol. That is, employers can punish inappropriate behavior and require that employees show up clean and sober.

The waters get murkier; however, when workers addicted to drugs or alcohol want to clean up their act. In some circumstances, you may be required to accommodate their attempts. In addition, they may be eligible for leave under the Family and Medical Leave Act. Under the ADA, what the employee is addicted to makes a difference in how much leeway you must provide as an employer.

The ADA does not protect current users of illegal (i.e., “street”) drugs. It does, however, protect those who’ve shaken their addiction sufficiently to no longer be classified as active illegal drug users. You should offer these workers reasonable accommodations to keep them on track: for example, time off for therapy, counseling and attending Narcotics Anonymous meetings or even inpatient care for related psychiatric problems like depression.

You can fire people who are current drug users even if their work isn’t suffering. Just be sure that the use in question is really “current.” The ADA specifies that a worker who is “currently engaged in the illegal use of drugs” isn’t covered by the law.

The EEOC has taken the position that “current” means “the illegal use of drugs that has occurred recently enough to indicate that the individual is actively engaged in such conduct.”

The EEOC’s Technical Assistance Manual provides that “current drug use means that the illegal use of drugs occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is an ongoing problem. It is not limited to the day of use, or recent weeks or days, in terms of an employment action. It is determined on a case-by-case basis.”

So how long does it have to have been since the worker took drugs before the ADA protects him? What if your drug tests take three weeks to come back from the lab? Can he argue that any action you take against him three weeks later violates the ADA because he’s now a “former” drug user? The answer is unclear. Your best bet is to make sure that any action you take against him is based on his violation of an established workplace rule, not just the fact that he had a positive drug test.

The ADA covers workers who are alcoholics even if they currently drink. To be covered by the ADA, the alcoholics’ addiction must be severe enough to substantially impair a major life function such as taking care of himself. Many heavy drinkers may meet that test. That does not mean, however, that you have to tolerate alcoholics coming to work drunk.

Courts have consistently held that employers have the right to establish reasonable workplace rules, including coming to work clean and sober. For example, in Sally v. Circuit City, Inc., a federal appeals court ruled that the retailer was well within its rights when it fired a manager who admitted to using illegal drugs with a co-worker, was absent due to recreational drug use and reported to work high. His behavior violated company policy. The court found no evidence that the drug user was singled out for special consideration: i.e. no evidence that non-addicted workers who broke the rules weren’t punished. Because the policies were facially neutral and impartially applied, the court upheld the firing.

How you treat a former drug user is more problematic. Some appeals courts have taken the position that you can’t have a blanket policy by which you refuse to hire anyone who has a history of drug abuse. In a recent decision, the U.S. Supreme Court considered whether a former addict was entitled to a second chance: an opportunity to be rehired.

Joel Hernandez worked for Hughes Missile Systems in Arizona for about 30 years, first as a janitor and then as a technician. In 1991 he flunked a drug test because he had done cocaine the night before. When confronted, he agreed to resign for violating company rules rather than being fired. He then received treatment. Three years later, he was clean and applied for a job with the company again. It refused to rehire him ostensibly because it had a policy against rehiring anyone who’d been fired or resigned for violating company rules.

Hernandez sued, alleging that under the ADA he was entitled to preferential treatment. The 9th Circuit Court of Appeals agreed and concluded that workers who’ve recovered from addition can’t be excluded from rehiring if the workplace rule they violated had been directly linked to their disability—in this case, coming to work under the influence.

The Supreme Court heard the case and sent it back to the appeals court to determine whether a reasonable jury might believe that the employer refused to rehire Hernandez because of his past drug use, and not due to the company’s blanket no-rehire policy. Hernandez couldn’t raise the question of whether the blanket no-hire policy has a disparate impact on disabled applicants because he hadn’t raised it in his original pleadings. The appeals court ruled that the case should go to trial. Raytheon v. Hernandez.

Employers dodged the bullet with this case, but they may not be so lucky next time. The Supreme Court didn’t rule on whether employees could bring disparate-impact lawsuits if employers implement policies that harm disabled workers more than nondisabled workers.

Recommendation: To avoid being a test case, examine all of your blanket policies to determine if they disparately harm the disabled or any other protected group.

To protect yourself from lawsuits by former addicts, follow these guidelines:

• Set job-related rules against coming to work under the influence of drugs or alcohol.

• Establish behavioral rules such as demanding punctuality and regular attendance, allowing for appropriate FMLA absences.

• Apply the rules consistently. That is, if you fire someone who comes to work high, you should terminate those who show up drunk. In both cases, you’re punishing behavior (intoxication), not a disability (alcoholism or addiction).

• Keep records of whom you discipline and why. Review how you discipline workers who violate your rules with an eye toward identifying patterns. For example, see if you’ve disciplined those who come to work late because of an addiction more harshly than those who show up late for other reasons such as “traffic” or “car trouble.” Remember, a neutral rule created for a valid business purpose, applied evenhandedly, will stand up in court.

Recreational drug use or binge drinking:

Not everyone who uses drugs (legal or illegal) or drinks alcohol is disabled. Remember, to be a disability, a condition must substantially limit a major life activity. A worker who sometimes smokes marijuana or a social drinker who sometimes is hung over on Monday is not disabled. Neither is covered by the ADA or needs to be accommodated.

In fact, you should enforce all workplace rules against these workers. The reason is simple: If you go easy on weekend drinkers or drug users when you catch them and then land heavily on the true addict, you may create an ADA case. You would, in effect, be applying your neutral policy (“Don’t come to work under the influence”) to the disadvantage of the disabled addict. Define the crime, and then make sure everyone who breaks the rules does the time.

To get all your up to date ADA forms, policies, and guidelines in one place online, visit HRSentry today!

With the end of the year approaching quickly it is time to wrap up the year end payroll and benefits checklists.  I have provided some general tips and reminders on how to get it out of the way as fast and stress-free as possible.

Payroll:

* Send a reminder to all your employees to review the information on their pay stubs. Social Security Numbers and Names on your W2s must match the employee’s SS card.  If their Social Security Numbers don’t show up on their paystubs you can send them a notice with the information asking them to verify it. (Also remind them to fill out a new W4 if they have had a change in their family status).

* Eliminate returned W2s by asking employees to verify their addresses on their pay stubs so you have ample time to make changes.

* Review Taxable Fringe Benefits that must be posted into payroll for W2 reporting. Capture all information (ex: personal use of company car, relocation, etc).

* Create a list of outstanding checks to insure you comply with your State Escheat Laws (unclaimed property).

* Send reminders to any employees who have a W5 on file to fill out a new one (W5s expire on Dec 31).

* Check third party sick pay postings to make sure you have captured all information required.

Benefits:

* Compile Census information for retirement plan testing (highly compensated).

* Review list of which employees have life insurance over $50,000 to report taxable imputed income for Taxable group term life insurance.

* Verify Flexible Spending Accounts balances to confirm that employees will have total amount deducted by end of calendar year.

These are just a few examples of processes you can begin now to help your year end go a little smoother. There are several other items you must do at year end. For a complete list, log into HRSentry and search for Year End Checklist. u If you would like to purchase HR Made Simple to improve your compliance and reduce stress, you may do so here.

Over the past few months HRSentry has expanded to provide additional services in order to better serve our users.  These new features include Desktop Training programs, an Employment Audit, and the Getting started Kit among others.  To view the HRSentry demo simply visit our homepage and click on the box in the upper right corner of the screen with the play button in it.  We welcome any feedback from users!

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Who is Covered

Section 212(a) of the Immigration and Nationality Act applies to employers seeking to hire foreign workers immigrating for the purpose of employment. Section 122(a) of IMMACT requires employers to provide notice of the filing of a permanent labor certification application.

Basic Provisions/Requirements

Before a foreign worker can be admitted to the U.S. for permanent employment, the prospective employer must obtain a labor certification from the Secretary of Labor. The Secretary must certify that there are not sufficient U.S. workers who are able, willing,  qualified and available, and that the employment of an immigrant foreign worker will not  adversely affect the wages and working conditions of similarly employed U.S. workers.

The employer begins the labor certification process by filing Parts A and B of an Application for Alien Employment Certification, Form ETA 750, with the State Workforce Agency (SWA) serving the geographic area where the alien will work.  Employers are required to recruit U.S. workers at prevailing wages and working conditions through the SWA by placing a job order with the SWA and by placing an advertisement, depending upon the occupation, in a newspaper of general circulation or in a professional, trade or ethnic journal. The employer must also provide notice of the filing of the application for labor certification at the facility or location of the employment. Regional certifying officers have broad authority to require an employer to use other sources to recruit for U.S. workers that may be appropriate in a particular case.

In addition to recruiting through the SWA, employers may also recruit before filing their applications pursuant to the reduction in recruitment (RIR) provisions of the regulations at 20 CFR 656.21(i). The RIR provisions allow certifying officers to reduce, partially or completely, the employer’s recruitment efforts through the SWAs (e.g., by partially or completely decreasing the number of days which the employer must run the job order and/or ad).

A decision to grant or deny an employer’s application for a permanent alien employment certification is based on the results of the employer’s recruitment efforts and compliance with the Department of Labor’s regulations governing the permanent labor certification process. Those regulations are found at 20 CFR part 656.

Access your HRSentry account today to get more information on the types of Visas available as well as all your other HR needs.

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Immigration and illegal workers is a controversial issue all across this country as employers take advantage of the cheap labor available. Lax local and state laws(or enforcement) combined with the inability to get citizens to do hard labor for low wages, has led to the creation of day-laborers. Its a familiar scene played out everyday in many towns throughout the country; Workers lining outside local Dunkin’ Donuts or McDonalds waiting for employers to pull up in trucks looking for painters, roofers, construction workers, and more. The workers are picked up, taken to the site for the day, worked for long hours, and paid cash at the end. The next day it gets repeated all over again.  In this instance employers are liable for not paying payroll taxes, as well as breaking federal immigration laws.

Growing up in Connecticut where migrant workers can be found at most labor sites, I have been accustomed to this illegal practice as friends whose parents own construction and painting businesses complain about the lack of a dependable, legal workforce to draw from.  Personally, I find it hard to argue with small business owners using these workers to fill in the gaps and allow them both to put food on the table for their families as long as they are not mistreating, underpaying the workers and skipping over available legal workers to utilize cheaper labor.  I have also become accustomed to a much more serious offense taking place in factories and franchises in which owners advertise positions in other countries, promising green cards and profitable work in the United States.  Upon arrival these illegal workers are forced into positions with long hours and low pay with no chance at receiving a legal green card.

Recently in my hometown, it was discovered that the owner of a profitable Dunkin Donuts franchise in Connecticut was doing just this.  Recruiting workers from Portugal and falsifying documents to provide cheap and controllable labor for their stores.  In a 2005 investigation by Channel 8 news, an undercover reporter, in response to a questions regarding the need for a valid green card was told “between me and you, you do, but ah just give me any number you want. “You do,” he says “but just give me any number you want.”  After this investigation, two managers(also illegal immigrants) complained to the Dunkin’ Donuts Corporation.  “these illegal workers claim they were ordered not to hire Americans at their stores. “He told me not to hire American citizens because they were lazy,” says Man 1.  Man 2 says, “People illegal can work a lot of hours, no pay overtime.”  In this case, the owner was sentenced to 10 months in prison and charged a $1 million fine.  His daughter, who heped in the hiring, was placed in home confinement for one month and ordered to do 250 hours of community service.    This case represents a blatant disregard for both the laws and well being of the workers.

The previous cases represent two ends of the spectrum when dealing with illegal immigrants.  So what happens to the majority of managers and business owners who are somewhere in between, often times without even realizing the worker is not legally allowed to work?  How can you protect your organization?  These are tricky questions that requires an understanding of the types of visas and permits as well as proper documentation.  With the federal government cracking down on these employment practices, it is necessary for organizations to take a proactive role in ensuring the legitimacy of of their workforce.

To learn more about the visas available, as well as the laws and documentation(customizable samples included) required, access your HRSentry account today.

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