Sheppard Mullin Richter & Hampton LLP (03/14/12) James Hays; Rebecca Hirschklau

There appears to be a trend to add “unemployed” to the list of protected classifications under the myriad of federal and state fair employment practices acts. When unemployment rates are high, employers invariably become inundated with candidates for the limited openings that may become open and available, to the point where some employers have taken to disqualifying potential applicants by advertising that “the unemployed” need not apply. In light of this, Congress and several state legislative bodies have started to amend their antidiscrimination laws to add “unemployed status” as a protected class.

There are two bills currently pending in the U.S. Congress: HR 2501, the Fair Employment Opportunity Act of 2011 and S 1471, also known as the Fair Employment Opportunity Act of 2011. Both bills seek to bar private employers with 15 or more employees from discriminating against the unemployed when posting job openings and when considering an applicant for employment, unless current employment status was a bona fide job requirement.

Several states, meanwhile, are currently considering amendments to classify “unemployed status” as a protected class, thereby seeking to prohibit discrimination in hiring on the basis of an applicant’s unemployed status. New Jersey in 2011 became the first state to adopt a law concerning discrimination on the basis of an applicant’s employment status. Specifically, New Jersey now prohibits employers and employment agencies from advertising job vacancies that include “currently employed” as a job qualification; or indicate that applications will be accepted only from currently employed people; or that applications from the unemployed will not be accepted.

OSHA Law Update (03/08/12) Eric Conn

When the U.S. Occupational Safety and Health Administration unexpectedly shows up to begin an inspection and the employer’s representative whom the employer prefers to manage the OSHA inspection is not present at the workplace, the employer can request that the agency’s officer return at a later time or wait a reasonable amount of time until the employer’s chosen inspection representative is available.

OSHA’s Field Operations Manual explains that the agency believes waiting approximately one hour is a reasonable amount of time to delay the start of an inspection to wait for the employer’s selected representative to become available. However, unless the agency’s representative has a warrant or other exigent circumstances exist—such as imminent danger in plain view—the employer can refuse to consent to the inspection until its chosen representative arrives, so OSHA may not proceed with the inspection without obtaining a warrant, which generally takes at least a couple of days.

Additionally, in the absence of a related special emphasis program, a warrant, or a hazard in plain view, OSHA cannot expand the scope of a complaint-based inspection beyond the location and hazard identified in the complaint without the employer’s consent. The employer should insist that the inspection be limited to only that location.

HR.BLR.com (03/15/12)

The federal VOW to Hire Heroes Act calls on the U.S. Department of Labor to translate military skills and training to jobs in the civilian sector and simplify the process for veterans to secure necessary licenses and certifications. It also alters the language of the federal Uniformed Services Employment and Reemployment Act to make it illegal for employers to create hostile work environments based on an employee’s status as a service member, using language similar to Title VII of the Civil Rights Act of 1964.

CFO (03/12) David McCann

In the past, the U.S. Department of Labor focused more on retirement plan compliance, but the agency is turning its attention to health benefit plans due to federal health care reform. Small companies without a human resources team may not maintain a required plan document that details claims procedures and eligibility provisions under the Employment Retirement Income Security Act. Many assume that insurance contracts satisfy ERISA standards, but DOL audits increasingly focus on both plan documents and insurance contracts, with companies not providing such documents within 30 days of an employee’s request facing fines up to $110 per day. Small firms also may neglect to retain plan-related documents for a sufficient time after the end of the plan year; ERISA mandates that such documents be retained for six years, but some states have longer statutes of limitations on claims against health plans.

Small firms also must comply with the Health Insurance Portability and Accountability Act of 1996, with the DOL undertaking audits of employers, who face penalties up to $2,500 per incident of noncompliance per standard. Under the federal health care reform law, companies with 250 or more employees must report all prior-year costs for health insurance paid by the employer and the employee on the employee’s Form W-2 beginning in 2013, with a $200 fine per form for incorrect information. Moreover, beginning Sept. 23, 2012, employers must provide a Summary of Benefits and Coverages document during open enrollment or face an excise tax of $100 per plan participant per day of noncompliance.