Summer means an influx of teen workers for many employers. Teen employees bring with them a unique set of legal issues of which businesses should be aware. Here are some ways to get ready for this year’s youth initiative.

Department of Labor

The U.S. Department of Labor (DOL) has published a web page that’s loaded with information and suggestions to help employers keep their teen-aged workers safe and to keep themselves in compliance with child labor laws this summer. Not all employers are aware of state and federal restrictions on the activities in which teens are permitted to engage at work. Alert employers will want to review this page, click on the links, and plan the steps they will take to decrease the risk that their teen employees will be injured at work.

The Delaware Department of Labor (DDOL) also has information about state child labor laws available in booklet form. A brief summary is available on the DDOL’s website.

Sexual Harassment Awareness

Employers should also take steps to address the special vulnerability of teen workers to sexual harassment. As an item on this blog noted a few weeks ago, an ABA Journal story reported that the number of teen-aged workers filing sexual harassment charges is on the rise. Teen workers are often part-time or seasonal, and may be in the workplace for the first time. They tend to fall between the cracks when it comes to training. Many restaurants, movie theaters and retail stores have teen-age supervisors and managers as well as workers. Teens tend not to realize that the standard of conduct at work is different from what’s permissible in a social setting.

Bottom Line

To minimize their risks, employers who hire teen-agers must make a strong effort to educate them (and their supervisors) about harassment, retaliation and workplace safety in a meaningful and understandable way.

To employers, recordkeeping, record retention, reporting, and notice requirements can seem like a complex algorithm of numbers and dates, precariously aligned against a backdrop of the numerous state and federal employment laws. The U.S. Department of Labor (DOL) has unveiled yet another compliance tool for employers.

The newest “elaws advisor,” which was unveiled earlier today, helps employers take the first step in any compliance objective–determining which of the DDOL’s recordkeeping, reporting and notice requirements apply to them. The new Recordkeeping, Reporting and Notices elaws Advisor has been integrated into a “FirstStep” suite of advisors. Just like it sounds, the “FirstStep” online tools all focus on providing employers with the right starting point as they work towards implementing best practices throughout the organization. Also included in the suite are the revised and expanded FirstStep Poster Advisor and FirstStep Employment Law Overview Advisor.

“These Internet tools will make it easier for small business employers to learn about and comply with the federal laws that apply to them,” said Secretary of Labor Elaine L. Chao.

The elaws advisors are free, Web-based tools, making them easily accessible by employees and employers alike. By asking a series of questions, the advisors simulate a conversation with a Department of Labor expert and guide users to customized information explaining the requirements of each law. For example, by asking questions such as size of business, location and type of industry through multiple choice or yes and no questions, the FirstStep Employment Law Overview Advisor determines which federal employment laws govern the user’s business. The advisor then provides information from the Labor Department’s Employment Law Guide on the basic provisions of these laws.

The new FirstStep Recordkeeping, Reporting and Notices Advisor summarizes the paperwork requirements for each law. The FirstStep Poster Advisor, which can be used to download and print off Labor Department posters for free, was revised to include information on where the posters must be displayed in the workplace, and what size and language requirements apply to each.

This suite of FirstStep elaws advisors is available at www.dol.gov/elaws/firststep.

The DOL offers more than 25 other elaws advisors covering a wide range of employment law topics, such as minimum wage and overtime, child labor, veterans’ workplace rights, health and retirement benefits, and workplace safety and health. For more information, visit www.dol.gov/elaws.

Last week I posted about a new survey on the lack of commitment by employees to health and wellness programs sponsored by their employers. For those of you who were not deterred by that news, here’s a[nother] helpful (and free) online tool from the Department of Labor (DOL).

In February, the DOL issued its Field Assistance Bulletin 2008-02, which is designed to help employers who are attempting to establish a Wellness Program while remaining compliant with HIPPA regulations.

The Wellness Program Analysis can be found here.

Do You Need the Checklist?

In short, the answer is “yes” if you are an employer with any kind of health-promotion or disease prevention programs. Also known as “Wellness Programs,” these health-focused initiatives became popular early in the decade. Certainly you’ve heard of these programs, even if your workplace hasn’t yet adopted one.

Wellness programs come in every shape and size. Some of the more benign programs promote cholesterol screenings or even advocate flue shots for employees. Others promote an all-around “healthy lifestyle” by giving employees financial rewards for regular attendance at a fitness club. And, as you may have read in some of my previous posts, smoking is also a very popular target of wellness programs.

So why the need for a government-agency-sponsored “checklist?” As with just about everything in the law, we lawyers just can’t hardly stand to let anything be simple. Employers that utilize “wellness programs,” as defined by law, must follow certain practices to avoid violating the anti-discrimination provision of the Health Insurance Portability & Accountability Act (HIPAA). (Be honest, did you even know there was such a thing as an anti-discrimination provision in the HIPAA statute? If you said “no,” you wouldn’t be alone.)

Wellness programs that are subject to the HIPAA regulations must meet either a “benign discrimination” exception or offer a reasonable “alternative standard” in order to be in compliance with the law. Which exception will depend on whether your program is considered a “standard-based” or “participation-based” program.

Standard-Based vs. Participation-Based Programs

Standard-based programs require participating employees to meet the stated objective in order to receive the offered reward. So, for an employee to successfully complete a cholesterol-reduction program, his cholesterol must actually be reduced.

Participation-based programs offer a reward to employees based on their participation, as opposed to their success. The reward cannot be conditioned on achievement of a specific health-related outcome. So, for a smoking-cessation program, employees can receive the reward so long as they complete the program. Whether or not the employee actually quits the habit does not effect their eligibility for the reward.

Discrimination In a Standard-Based Wellness Program

To comply with HIPAA, a standard-based program must satisfy five requirements:

1. The reward offered under the program must be limited to 20% of the applicable cost of coverage.

2. The program must be reasonably designed to promote health or prevent disease.

3. Individuals must be eligible to qualify to participate in the program at least once per year.

4. The reward must be available to all similarly-situated individuals.

5. The wellness program must have a reasonable alternative standard and disclose the alternative standard in all program materials that describe the program.

And what exactly is the “reasonable alternative standard” identified in the fifth prong?

For standard-based wellness programs to avoid a HIPAA violation, it must offer an “alternative standard.” This means that an employee must be offered a reasonable alternative to the stated objective and still be able to achieve the reward. In the cholesterol-screening example, the objective is the attainment of a certain cholesterol target. An alternative standard would be nutrition counseling sessions. The standard must be made available to those for whom it is (1) unreasonably difficult due to a medication condition; or (2) medically inadvisable to satisfy the otherwise applicable standard.

Last week I posted a couple of items about the Department of Homeland Security’s (DHS) “Safe-Harbor Rule,” which gives employers a method for avoiding prosecution for intentionally employing undocumented workers who have been listed in “no-match letters.” As you know if you read those items, the latest batch of “no-match letters” from the Social Security Administration (SSA) is on hold for an indefinite period. In the meantime, if you have received a no-match letter in the past, or suspect that you might be getting one in the future, is there anything you can do now to minimize future problems?

The answer to that question is yes. Employers now have two methods for finding out the extent of their no-match problem and of weeding out undocumented workers. One is the SSA’s Social Security Number Verification System (SSNVS), and the other is DHS’s “E-Verify” program. Both are free web-based programs.

The SSA program simply looks for mismatches between its records and your, the employer’s, records, and can be used for your entire workforce at any time. If you find a mismatch between your records and the SSA’s records as a result of using the SSNVS, the SSA tells you to check with the employee to find out whether you have the correct information in your records, and to resubmit the inquiry if you find an error. If that doesn’t end the problem, the SSNVS Handbook gives the following caution:

Remember

• A mismatch is not a basis, in and of itself, for you to take any adverse action against an employee, such as laying off, suspending, firing or discriminating.

• Company policy should be applied consistently to all workers.

• Any employer that uses the failure of the information to match SSA records to take inappropriate adverse action against a worker may violate State or Federal law.

• The information you receive from SSNVS does not make any statement regarding a worker’s immigration status.

What the SSA program really does, then, is give you an opportunity to reduce the number of clerical errors in your payroll database. It also will give you an idea of whether you might be of interest to DHS, since DHS is now using SSN mismatches as a method for identifying employers with a high number of undocumented workers. If you find out that you have at least 10 unresolved mismatches and those mismatches constitute at least 0.5% of your workforce, you should take additional steps now to avoid possible future liability. At least one of those steps should be signing up for the DHS E-Verify program.

E-Verify is a free Web-based system that electronically verifies the employment eligibility of newly hired employees, and can be used for new hires only. To use E-Verify, first the employer must register as a participant and sign a “Memorandum of Understanding” (MOU) that will outline the responsibilities of the employer, the SSA and DHS. Your employees who administer the program will be trained in how to use it.

E-Verify works by allowing you to electronically submit employee information taken from the Form I-9. That information is then compared to the more than 425 million records in SSA’s database and the more than 60 million records in DHS immigration databases. Results are returned in seconds.

According DHS, E-Verify is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. They claim that it will virtually eliminate Social Security mismatch letters, improves the accuracy of wage and tax reporting, protect jobs for authorized U.S. workers, and help U.S. employers maintain a legal workforce.

Once you are registered for E-Verify, you start the process after an individual accepts an offer of employment and after you and the employee complete the Form I-9. Under the terms of the MOU, the employer must initiate the query no later than the end of three business days after the new hire’s actual start date. If there is no problem, the confirmation should come through in seconds, according to the DHS/SSA website. If there is a tentative “nonconfirmation,” the employer prints out the tentative nonconfirmation notice generated by the E-Verify program and gives a copy to the employee. The employer also checks its input to make sure it did not make an error in submitting information to the system.

The employee decides whether to contest the tentative nonconfirmation and tells the employer his or her decision. If the employee decides not to contest the tentative nonconfirmation, the employer treats the employee as non-work-authorized and terminates employment.

If the employee decides to contest the nonconfirmation, the employer gives the employee a referral letter and tells the employee to visit the local SSA office, if the nonconfirmation was from the SSA, or to call the DHS toll-free hotline, if the nonconfirmation was from the DHS or when the employer finds a non-match between a non-citizen and a document generated by the E-Verify system for that employee. The employee has to follow up with SSA or DHS within 8 federal government business days. On the tenth business day, the employer queries the system to find out whether the SSA or DHS have issued a confirmation or a final nonconfirmation. If there is a final nonconfirmation, the employee should be terminated.

An employee should not face any adverse employment consequences based upon an employer’s use of E-Verify unless a query results in a final non-confirmation. The biggest downside of the E-Verify program is the lengthy list of responsibilities (15 items) that the employer must agree to take on. You can get more information about E-Verify on the DHS website here.

You may find this hard to believe but I am about to use the words “S.E.C.” and “cool” in the same sentence. It’s true. The U.S. Securities & Exchange Commission has an interesting (read: cool) new online tool. It’s Executive Pay Finder allows you to search SEC filings to find out how much and in what form the nation’s top executives are being compensated. There are currently 500 companies included in the database. The SEC explains the tool:

This interactive tool is designed to illustrate some of the ways that interactive data can improve the quality and usability of executive compensation disclosure. It relies on interactive data tags that were applied by the Commission to the summary executive compensation disclosure in the public filings of 500 large companies for 2006.

The tool allows you to search for a specific company, by revenue, or even by industry. And that’s just the tip of the iceberg for its search capabilities. Once you find the company or companies that interest you, the tool actually gives you the capability to compile them into a single table for comparison purposes and then, you can even send your data to a Microsoft Excel Spreadsheet, create charts and graphs, Oh my!!!

For those of you who may be working on a compensation audit or getting ready to revamp your pay structure, this tool may provide some helpful insight. For the rest of us, it’s just plain interesting cool!