Wednesday, Sept. 19 | 3:30 pm | Room 308
Concurrent Session:
FMLA, DOL, FLRB, ERISA, OSH – The Alphabet of
Agencies and Legislation that Affect Your CW Risk
Moderator: Adrianne Nelson, Director, Global Services,
Staffing Industry Analysts
Panelists:
 Sarah Haskin, VP, Compliance, Guidant Group
 William F. Dolan, Attorney, Jones Day
Sponsored by:
© 2012 Crain Communications Inc
Alphabet Soup
ICE
FMLA
IRS
W-2 EMPA
PPACA ADEA FLSA
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The Top Five “Ingredients”
 IRS
 NLRB
 EEOC
 ERISA
 DOL
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Agency
Areas potentially affected by employee
misclassification

DOL


Minimum wage, overtime, and child labor
provisions
Job-Protection and unpaid leave
Safety and health protections
IRS

Federal income and employment (payroll) taxes
Department of Health and
Human Services

Medicare benefit payments
DOL, IRS, and the Pension
Benefit Guaranty Corporation

Pension, health and other employee benefit plans
Equal Employment
Opportunity Commission

Prohibitions of employment discrimination based
on factors such as race, gender, disability or age
National Labor Relations
Board

The right to organize and bargain collectively
Social Security Administration 


State Agencies

Retirement and disability coverage and payments
Unemployment insurance benefit payments
State income and employment taxes
Workers’ compensation benefit payments
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 Misclassification=$$$
 IRS announces nationwide crackdown

- 100 new auditors hired for this issue alone
- Information sharing
- Tougher enforcement
Federal investigatory grants to states
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IRS Announcement 2011-64
 Voluntary Classification Settlement Program
Prospectively change classification of workers
-
to employees.
Must have treated as 1099’s and paid for three
years
Pay only 10% of employment tax for most
recent tax year
No back audits
 State Efforts
California
Other states
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Current IRS Three (Or Old Twenty?) Point Test
 Behavioral Control
 Financial Control
 Relationship
Internal Risk Management Provider Solution
-
Management
Hire/Fire
Discipline
Outside review of classification
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 Term limits
Split of opinions


- Cost effective?
- Necessary?
Costly and disruptive
Contractual Separations
Benefit disclaimers
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National Labor Relations Act (“NLRA”; 29 U.S.C.
§§ 151-169)
 In 1975, almost one of every three private
jobs was unionized.
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NLRB Penalties:
There is nothing “social” about “social media.”


Vigorous enforcement by NLRB of Section 5 of NLRA (right to
discuss matters relating to concerted activity) (over 40 cases!).
Violation for clients to have social media rules that say:
[Employer] encourages employees and other contingent resources
to consider using available internal resources, rather than social
media or other online forums, to resolve [workplace]concerns.
OR
If during the course of your work you create, receive or become
aware of personal information about [Employer’s] employees,
contingent workers, customers, customers’ patients, providers,
business partners or third parties, don’t disclose that information in
any way via social media or other online activities.
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© 2012 Crain Communications Inc
EEOC:
8 Federal Statutes and 26 Federal Regulations
Well developed body of law regarding client’s obligations to
contingent workers and others in the facility.
“Staffing firm workers are generally covered under the antidiscrimination statutes. This is because they typically qualify as
"employees" of the staffing firm, the client to whom they are
assigned, or both. Thus, staffing firms and the clients to whom
they assign workers may not discriminate against the workers on
the basis of race, color, religion, sex, national origin, age, or
disability.”
Enforcement Guidance, EEOC Notice 915.002 (1997)
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17 Additional Non-EEOC Federal Laws, Regulations
and Executive Orders Govern Discrimination Alone
The Civil Service Reform Act
The Occupational Safety and
Rights Act of 1866
of 1978 (CSRA)
Health Act of 1970 (OSHA)
(whistleblower)
Workers Compensation Law
Section 503 of the
Title I of Genetic Information
The Immigration Reform and
Control Act of 1986 (IRCA)
Executive Order 11246
Title VI of the Civil Rights Act
of 1964
Title II of the Americans with
Disabilities Act (ADA )
(governments)
Title III of the ADA (public
accommodations)
The Family and Medical Leave
Act (FMLA)
Rehabilitation Act
Nondiscrimination Act
Section 504 of the
The Civil Service Reform Act
Rehabilitation Act
Of 1978 (CSRA)
Section 508 of the
Rehabilitation Act
The Social Security Act
The Fair Labor Standards Act
National Labor Relations Act
Section 1981 of the Civil
And that’s not even counting the states, DC and the territories (yes, it’s illegal to discriminate in
American Samoa too).
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© 2012 Crain Communications Inc
L.S.D. and P.O.T.
 DIVERGENT POSITIONS OF STATE AGENCIES
CALIFORNIA
NEW ENGLAND
 DRUG TESTING LAWS BY STATE
 CREDIT CHECKS
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© 2012 Crain Communications Inc
DOL: 41 major statutes and regulations
1000 new investigators
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© 2012 Crain Communications Inc
The Big F’s
 FLSA
Wage and Hour
Misclassification (labor law)

-
- Exempt vs non-exempt
- Tenure policies
FMLA
Federal
States
- California Family Rights Act
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© 2012 Crain Communications Inc
OSHA, WC and PPACA





Contingent safety
OSHA reporting obligations
CGL insurer: failure to notify?
Shared Employee doctrine
Save the date…January 1, 2014
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© 2012 Crain Communications Inc
The I’s- I9 and ICE
 The Contingent Vendor is legally responsible
to verify eligibility.
Feb, 2011: The president of two Chicagoarea staffing companies that supplied
temporary workers to suburban warehouses
has been sentenced to 18 months in prison
for hiring illegal aliens to form his labor pool.
 Client is not directly responsible
 The Client can be held criminally liable
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ALPHABET SOUP
-
What you know now…
- 3 key things to remember
-
What you don’t know yet…
- Upcoming legislation
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© 2012 Crain Communications Inc