#1 New ADA regulations nearing implementation

On September 26, 2009 the Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking in order to bring the agency’s regulations into alignment with the Americans with Disabilities Act Amendments (ADAA) that became effective last January. 

The terms of the ADAA overturned judicial decisions narrowly defining the term disability. The Act also evidenced Congressional intent to eliminate the extensive analysis required of parties in attempting to define a disability. The new regulations have been drafted to carry out these terms. Employers should prepare for the eventual enactment regulations that will change their policies and practices in at least two significant areas as follows.                                                                           

#2 How to build your workforce in a downed economy

One of the few positive attributes of the current economic climate is that it offers employers the opportunity to review and fine tune their hiring processes. This is particularly important where employers may be pressured to hire people quickly once the market improves. Additionally, employers can take advantage of a larger-than-average applicant pool. At this time, employers should:

1. Ensure job descriptions accurately reflect the work to be done. They should clearly identify the skills, knowledge and abilities necessary to perform the job before you have the need to write an advertisement.

2. Update your application and review for legal compliance.

• Make certain your application is tailored to your organization. 
• Ensure the application seeks only legitimate information and avoids eliciting protected or discriminatory information. For more information, see the Pre-Employment Inquiry Guide.
• Do not accept applications when you are not hiring.

3. Evaluate the hiring processes.

• Consider the types of screening your company needs and set up a means to carry that out efficiently.

• Criminal background checks are required for any worker who will have unsupervised access to the public. While those employers providing childcare or care for vulnerable populations are well aware of this fact, some other industries may miss the required checks. This can include workers who deliver or service goods in the home of a customer, have keys to hotel rooms, etc.
• Background checks are critical for all employers in minimizing negligent hiring liability and determining whether an individual is the best fit for the job.

• Use only credible organizations to conduct your background checks and pre-employment physicals or ability testing. Use this time to investigate providers and set up an account with them.
• Don’t rely on Internet search or social networking sites. Such sources present issues regarding their validity and privacy issues.

• Many employers have been able to hire individuals who previously would have been out of their reach in a better economy. This has created a desire for employment contracts, attempting to lock the individual into employment for a minimum term.

• Remember employment contracts work both ways – although it may keep an individual working for you, it also prevents you from ending the relationship easily if your business circumstances change.
• Never use boilerplate contracts from a stationary store or online vender. Contracts should be fair to all parties and tailored to the specific circumstances. A form may contain language that seems harmless, but it may restrict your ability to act later on or fail to protect your business interests.

Members are encouraged to contact our legal and/or human resource departments for further information or specific inquiries. This includes a free review of your application, existing offer letters or other employment documents. HR leasing is also available.

# 4 DOT random testing rates released

The federal Department of Transportation (DOT) enforces federal regulations requiring drug and alcohol testing of employees performing safety sensitive functions in transportation industries such as trucking and mass transit. Each year, the agency is charged with setting the minimum random percentage testing rates.

This assessment is based on the positive drug and alcohol violation rates over the previous two years. The percentage rate for random drug testing must be 25% or greater; and the rate for random alcohol testing must be 10% or more. This year the rates applied in 2009 continue. For trucking businesses within the coverage of the Motor Carrier Safety Administration, the random drug testing rate is 50% and the random alcohol testing rate is 10%.

For other transportation industry rates, please see the 2010 random rate notice in its entirety.

– Ann Allen, Associated Industries Chief In-house Counsel

#5 Legal Developments of 2009:
A Year in Review 

This past year ushered in many developments on the labor and employment law front. A new administration and the changing economy led to several new laws and regulations and modifications to some existing ones. Here are the highlights that captured the legal department’s attention. Click here for more information on the following topics:

• Lilly Ledbetter Fair Pay Act. January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act into law.
• American Recovery and Reinvestment Act (ARRA). The ARRA, provides for premium reductions under COBRA.
• Genetic Information Non-Disclosure Act (GINA). GINA became effective on November 21, 2009.
• Washington State Domestic Partnership Act. The Washington State Domestic Partnership Act took effect on December 3, 2009.
• Extensive Changes to Family Medical Leave Act (FMLA) Regulations. On November 17, 2008 the Department of Labor issued its final rules updating the regulations implementing the terms of the FMLA.
• E-Verify Rule Goes into Effect. Effective September 8, 2009, federal contractors / subcontractors were mandated to use the E-verify system.

Presented below is a hypothetical fact pattern based on a compilation of questions related to hiring issues received by Associated Industries’ In-house Counsel. The information below is not a substitution for competent legal advice, nor does it create an attorney-client relationship between Associated Industries’ In-house Counsel and any readers or recipients of this information. Additionally, this material reflects the current state of the law at the time of development. Where specific legal issues arise, recipients or readers should seek private legal counsel.

THE DILEMMA

An employer fabricating company has recently entered into a contract to produce sign posts for new road construction funded by federal stimulus programs. In order to receive these contracted funds, however, the employer must begin production by February 1. This requires the employer to hire production employees right away.

The work is strenuous and involves a significant amount of lifting and the operation of forklifts and heavy machinery. John Doe has interviewed for the position. Because of the physical nature of the position and number of previous workers’ compensation claims, the HR manager has inquired whether John has any prior L & I claims. She thinks John will be a good fit and has offered him the position, provided he undergoes and passes the company mandated pre-employment medical exam and drug test.

New class highlight!
WORKSOURCE programs for WA employers.

Wondering how you can afford staff training? Meet your representatives from WORKSource Spokane, and bring back valuable information for your business on two important aspects of our new WORKSource programs for Washington employers:

"Stimulus Dollars and Employer Training Subsidies": Learn about funding available to businesses for new employee training and internship programs, followed by an audience Q & A session.

PRESENTERS:   
Mollie Patshkowski, Business Solutions Manager, and
Frank Polito, Employment and Training Counselor
Washington State Employment Security Department

"Unemployment Taxes": Containing costs, unemployment tax reporting and insurance benefits.

PRESENTERS:    
Stan Marsh, Adjudication Supervisor for Unemployment Insurance Division, and
Joan Frieje, Intake Supervisor for the Unemployment Insurance Division,
Washington State Employment Security Department

WORKSource Spokane is a local career development center and partnership of organizations that provide employment and tsraining services.

Tri-Cities Offering! "Affirmative Action Compliance" workshop

Corporate Affirmative Action risks are changing − especially for employers with 50 or more employees. Associated Industries is offering a valuable Affirmative Action Plan (AAP) Workshop in the Tri-Cities area, co-sponsored by the Tri-City Development Council (TRIDEC.)

You will learn information such as:

• The seven types of Affirmative Action and who is covered
• What the regulations require under and over $50K in revenue
• How to create job groups to analyze gender and ethnicity
• How to use advanced statistical and computerized shortcuts to your advantage
• New federal audit programs, enforcement and potential penalties
• Recent record-keeping requirement changes

Upcoming training classes at Associated Industries: Set the date!

Interactive Leadership - A ten-part course designed to make lead workers and managers more efficient and capable. Class begins Thursday, February 4.
Investment: Member $980, Non-member $1500.

First Aid and CPR training class - Fast-paced, hands-on First Aid/CPR training meets OSHA/WISHA standards, and qualifies as continuing education credits for plumbers and electricians. Presented by 1st Line 1st Aid from 8:00 a.m. to noon, Thursday, February 4.
Investment: $55 for members, $75 for non-members.

Customer Service for Everyone - A four-part course that will take participants customer service and problem solving skills to the next level. Instructed by Ed Coker. Class begins on Tuesday, February 16.
Investment: Member $340, Non-member $520.

Watch your inbox for more information on these classes as their dates approach. If you would like more information now or to register contact Clydene Franklin, Associated Industries at 509.326.6885.

A message from Val Fields regarding expanded HR Services


Business is always about people, and a high quality Human Resources program is a key to success. Let me assist in managing your greatest asset, your employees. I can do so on either a regular or temporary part time basis.

A decision to use Associated Industries HR Staff Leasing offers an excellent return on your investment. You’ll not only retain and attract the best employees and get the help you need to handle your important Human Resources functions, you’ll also save time and provide better employee services in the process.

Allow me to provide solutions for you, on your Human Resource issues, at your location on your schedule.

Not sure you need help? Finding out is easy. To assess your current HR strengths, call or email me and ask for our Small Employer (less than 50 employees) Self Audit and see how well you fare.

For more information about me, click here or give me a call at 509.326.6885

by Steven M. Roark, CPA, LeMaster Daniels

2010 Tax Law changes impact businesses

The New Year brings several important new tax changes that may impact your business.
Combined Plans Allowed for Smaller Employers. For plan years beginning Jan 1, employers with 500 or fewer employees are now allowed to establish a combined defined-benefit 401(k) plan (“DB (k) plan”).

Limitations and restrictions are similar to the defined benefit rules for the defined benefit plan component and the defined contribution rules for the defined contribution plan component. The 401(k) component has minimum matching contribution requirements and the participant must use automatic enrollment to qualify.

Standard Mileage Rate Changes. The optional automobile mileage allowance (including vans, pickups or panel trucks) decreases from 55¢ per mile to 50¢ per mile for business travel in 2010. Additionally, the mileage depreciation component increases to 23¢ per mile from 21¢ per mile.
The 50¢ reimbursement is treated as a tax-free accountable-plan reimbursement as long as employees substantiate the time, place, business purpose and mileage for each trip. Rates apply to employee owned or leased autos.