HR FAQ's

 The questions and answers in this section are just the beginning.  We plan to add to this resource as the site develops and grows.  We welcome questions from all visitors.  Just e-mail them to us and we will get an answer for you.  If you have something to add, send it to us and we'll try to incorporate it into a section.  If you disagree with one of our answers, we welcome your feedback. 

Please note that the information here is general in nature and is not intended as legal advice.  Please consult legal counsel for information on your specific situation.

General Information About Human Resources

• What is the typical ratio of HR people to employees in an organization?
• What is "normal" turnover for an organization like mine?
• What are some general guidelines on letters from Human Resources staff?
• What is the difference between an employee handbook and a policy manual?
• I know that my company can be sued bycurrent and former employees for its employment actions. Do I, as an HR professional, have personal liability?

Employee Files and Information

• What employee/employment information should my employer shred?
• What should, and should not, be included in the personnel file?
• Are we (private company) obligated to allow current employees to review their personnel files? What about former employees? Are we obligated to make copies of employee personnel files as well?
• Does the Federal Privacy Act protect an employee's access to his personnel file?
• How can we protect the company from defamation suits when giving references?
• Can employers monitor employee e-mail?
• The FBI has requested a list of all our employees and their Social Security numbers. We also have had the local police ask us for information on an employee. Do we have to comply with these requests?

Equal Employment Opportunity (EEO)

• What are the filing requirements for the EEO-l form?

Wage and Hour Issues

• Do we have to pay a non-exempt employee for time spent on training?
• What is meant by the terms "exempt" or "non-exempt"?

Legal Compliance

• What laws are we required to comply with? Several of them are based on employer size.

Hiring and Recruiting

• What should I avoid asking during an interview?
• What are the legal issues related to reference checking?
• What compliance issues are involved in creating a pre-employment test?
• What do we need to do to implement a pre-employment drug screen?
• What are the compliance issues involved in conducting pre-employment criminal background checks?
• What are the compliance issues involved in conducting pre-employment physical examinations?

Benefits

• What is HIPAA and how does it relate to COBRA?
• When are we legally required to offer benefits to part-time employees?
• Can we have a mandatory retirement age in our retirement plan provisions?
• What is an employer's obligation under the Uniformed Services Employment and Reemployment Rights Act (USERRA) to return employees to work when they return from military leave?
• What are the requirements under the Veterans Benefits Improvement Act (VBIA)?
• Where can I get information about the Family and Medical Leave Act (FMLA)?

General information about Human Resources

 What is the typical ratio of HR people to employees in an organization?
The number of Human Resources personnel to total employees depends mainly on the individual company's structure, actual size, and reliance on in-house staff vs. utilization of outside HR consultants, or outsourcing firms.   In an annual survey conducted by the Bureau of National Affairs with SHRM, employers are reported to have an average of 1.0 full-time HR professionals for every 100 employees in the workforce.  You can view a summary of the report at www.shrm.org/bna. A complete copy of the "HR Department Benchmarks & Analysis" is available by contacting the Bureau of National Affairs at (800) 452-7773 or via their internet website at www.bna.com.

 What is "normal" turnover for an organization like mine?

The Bureau of National Affairs produces a quarterly turnover report called the "Quarterly BNA Job Absence and Turnover Report", which can be obtained by contacting them directly via their internet website (www.BNA.com), or by calling them at (800) 452-7773. Highlights of this report are on the Online BNA Publications, courtesy of BNA.

 What are some general guidelines on letters from Human Resources staff?

One of the greatest challenges for HR professionals is deciding exactly how much information should go into their written correspondence. The key is the same for all good business writing: Tell the reader as much as he or she needs to know.

1. Gather the information you need to communicate to the reader.
2. Organize your thoughts. Determine the most logical way to order the information, so that the reader can easily grasp the major points.
3. Focus the message. It may be useful to imagine you are paying a price per word, as you would with classified advertising, so get to the essence.
4. Draft the document into a rough typed copy.
5. Edit the document. Not only should it read smoothly, but proofread carefully for correctness. Rely on a handbook to verify wording, grammar and punctuation.

Here are some specifics for common HR letters:

• Offer letters: An offer letter may be construed as a contract. Therefore, give the necessary details but be cautious; this is not the time to make long-term promises or implications regarding job security. To avoid implying that employment is for a yearlong period, quote salary as an hourly, weekly or monthly equivalent rather than an annual figure.
• Termination letters: These letters provide a special challenge as they may end up in court. But, termination letters are useful because an employee may be too emotional to retain what is said at a termination meeting. It is important that the tone of a termination letter be professional and polite. Terms should be spelled out for both the employee and anyone who may be reviewing it during future litigation. (Certain states require "service letters" that also must include a reason for the termination. If this is the case in your state, or if you wish to document the reason(s), make sure to include only verifiable facts).
• Reference letters/employment verifications: It is often recommended that a company have a consistent, neutral reference policy. It usually is advisable to have references or employment verifications come from a centralized location, such as HR, as opposed to coming from individual supervisors.

 What is the difference between an employee handbook and a policy manual? 

A Policy Manual is the formal full set of policies relating to the workforce that your company has in place. It is usually written for the use of the company management team to make decisions relating to workplace issues. An Employee Handbook is written for employees in a style and format that is easy to use. The Handbook may reference the Policy Manual, but is not written in such a formal way. The Policy Manual may have a section on vacation, for example, including exactly how vacation is accrued, when and how vacation can be requested, if earned vacation is paid upon termination, etc. The Employee Handbook would be a more informal listing of how many days of vacation are available each year, and perhaps provide a form for requesting them. While a Policy Manual could be several hundred pages long, depending on many factors, the Employee Handbook is usually a booklet. Employees can speak with their managers if they have questions that the Handbook does not address -- and the manager will look at the Policy Manual to find the answers.

 I know that my company can be sued by current and former employees for its employment actions. Do I, as an HR professional, have personal liability?

An HR professional may have personal liability for participation in employment actions under federal, state and local employment laws depending on how the term "employer" is defined in the particular employment law and how it is interpreted by the courts. There may also be personal liability for HR professionals under common law.

At the federal level, one of the most difficult employment laws to administer-the Family and Medical Leave Act-provides for personal liability because the employer is defined in FMLA regulation 825.800 as "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." The Fair Labor Standards Act includes a similar definition of the employer , also providing for personal liability of managers. Under Title VII of the Civil Rights Act,  the Age Discrimination in Employment Act and the Americans with Disabilities Act, the current interpretation of the term "employer" is more equivocal. The U.S. Circuit Courts of Appeals has not usually found personal liability under these laws. Ultimately, the U.S. Supreme Court may rule on this issue.

Many states and localities have fair employment laws that may provide for personal liability of the company manager. Although these statutes are modeled after the federal laws, often, unlike the federal ones, they do provide for personal liability for managers of the employer. As discussed in the SHRM Legal Report, "Personal Liability of Human Resource Professionals in Employment Litigation", more cases alleging discriminatory acts in employment are brought in the state court system than in the federal system. Increasingly, the risk for personal liability is under state-not federal-law.

Common-law claims are not based on federal, state or local statutes but on case law. These claims may include intentional infliction of emotional distress, such as severe anxiety caused by sexual harassment, and defamation, such as a false and malicious reference given on a former employee. Common-law claims may also allege wrongful termination under exceptions for employment-at-will. An example of this would be when an employee is terminated for whistle-blowing about an illegal employer activity.

You can limit your liability by complying with all applicable employment laws, following your company's policies and procedures and consulting legal counsel for definitive guidance for complicated situations. Many employers also obtain insurance against many employment claims with employment practices liability insurance (EPLI). If your employer does not currently have EPLI coverage, you may want to consider this protection for HR staff as well as other management employees.

Employee Files and Information

 What employee/employment information should my employer shred?

As of June 1, 2005, all employers are required to shred any document that contains personal information derived from a consumer report. Personal information could be a telephone number, address, Social Security number, etc. The requirement comes from the federal Fair and Accurate Credit Transactions (FACT) Act which was passed in December 2003. According to USA Today, "The law requires the destruction-'shredding or burning' or 'smashing or wiping'-of all paper or computer disks containing personal information that is 'derived from a consumer report' before it is discarded." This law applies to all employers with one or more employees.

The aim is to protect the public from identity theft. Much of the personal information is stolen from an employer and comes from the employer's paperwork as well as computer database systems. Employers have a duty to restrict access to this data as well as to properly dispose of the information. Guidelines should be established to maintain confidentiality and place restrictions on this information.

Failure to comply with the new regulations could result in several different types of penalties, including civil liabilities, class-action lawsuits and federal and state fines.

Members can read the Federal Trade Commission's (FTC) final rule on disposal of consumer information and records on the FTC Web site .

What should, and should not, be included in the personnel file? 

What should be included in a basic personnel file:

• employment application and résumé
• college transcripts
• job descriptions
• records relating to hiring, promotion, demotion, transfer, layoff, rates of pay and other forms of compensation, and education and training records
• records relating to other employment practices
• letters of recognition
• disciplinary notices or documents
• performance evaluations
• test documents used by an employer to make an employment decision
• exit interviews
• termination records

What should not be included in a basic personnel file:

• medical/insurance records
• EEO/invitation to self-identify disability or veteran status records
• immigration (I-9) forms
• safety training records
• child support/garnishments
• litigation documents
• workers' compensation claims
• requests for employment/payroll verification

 Are we (private company) obligated to allow current employees to review their personnel files? What about former employees? Are we obligated to make copies of employee personnel files as well? 

There is no federal law that requires private employers to provide employees access to their personnel files. Requirements to access personnel files are guided by state law. Seventeen states have some provisions governing an employee's right to access his or her personnel file: Alaska, California, Connecticut, Delaware, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, Oregon, Pennsylvania, Rhode Island, Washington, and Wisconsin. The provisions and wording vary widely from state to state.

The provisions often address issues such as (a) who has access (current and former employees), (b) frequency of access, (c) how to obtain copies, (d) what are exceptions to the information accessible by employees, (e) what are prohibitions on the kinds of records to be kept, (f) how record corrections be made, (g) what legal remedies are available, and (h) what can be disclosed to third parties. Please keep these items in mind when developing a company personnel file access policy.

In the event that no state law exists, generally it is recommended that employers establish a voluntary policy governing access to personnel files. A formal policy will prevent managers and human resources staff from giving inaccurate information in response to employees' requests for access. The first step in developing a policy is to know the laws for all the states in which the company employs people. A multi-state employer will want to make its policy sufficiently flexible to apply to all employees. A statement such as "Access to personnel files will be provided according to state law" is appropriate. Even if state law doesn't apply, there are several issues that employers should consider in developing their policies:

• Will employees be allowed to photocopy items in their files?
• Will access be granted to all employees or only to specific employees, at the company's discretion?
• Will employees be allowed to assign their right to inspect their files to a union representative or lawyer?
• What is the procedure for employees to challenge information they believe to be incorrect?

A company policy can allow employees access to their personnel files only for specific reasons. For example, a policy might limit an employee's review to disciplinary actions and performance appraisals. Employees should not have access to confidential information, such as former employer reference checks and confidential investigations. The company may also limit the frequency of an employee's access to his or her personnel file.

 Does the Federal Privacy Act protect an employee's access to his personnel file? 

The Federal Privacy Act of 1974 regulates the collection by federal agencies of personal information (i.e., criminal history, education and health conditions) about their employees. The statute was intended to protect the privacy of federal employees identified in the federal information system. Though not an employment law, it may affect federal employees' rights regarding the access to their own personnel file. A common misconception is that the Federal Privacy Act applies to private employers. The Federal Privacy Act only applies to those private employers that have a government contract to maintain an agency's record system. This does not mean that private employers are off the hook when it comes to an employee's right to view his or her personnel file. Many states have enacted laws giving employees of private employers the right to view their personnel files; see the information in the previous answer.

 How can we protect the company from defamation suits when giving references?

Defamation occurs when one person makes false written or oral statements that harm another person's reputation. Defamation takes two forms: libel and slander. Libel occurs when the defamatory statements are written; slander when the defamatory statements are spoken. For a former employee to prove a defamation case, that employee must prove that false statements were made. The worker must also prove that the false statements were communicated to a third party, usually to a prospective employer or to a background-checking agency. Finally, the person must prove that injury occurred as a result of the false statement. Injury in employment reference cases typically involves a former employee who has been refused employment opportunities because of allegedly defamatory statements.

To protect your company from defamation suits the most conservative approach is to give no reference information other than confirming dates of employment and job titles. Many supervisors and managers may violate the policy and give references anyway. This can be a problem because they do so with no guidance or training from the company and, therefore, may be more prone to make a statement that might leave the employer open to claims of defamation. Therefore, if feasible, we recommend that requests for referrals be routed through a designated individual(s) who has received appropriate training.                              

Another approach is to provide limited references. In giving even limited references, the truth is the best defense against defamation allegations. Ways to limit any possible liability in disclosing reference information can include:

• Providing only information that can be documented, such as dates of employment and title.
• Requiring signed releases, including what information your company is allowed to disclose, from the former employee.
• Training managers and supervisors on how to provide references.
• Requiring all managers and supervisors to refer requests for references to the human resource department.
• Developing a policy and communicating it to managers and supervisors.
• Providing only truthful information that is job-related.

 Can employers monitor employee e-mail? 

In this era of developing technology, many companies must weigh the pro's and con's regarding monitoring employees' e-mail. Employees may perceive monitoring as an invasion of privacy. Employers perceive e-mail monitoring as a method of ensuring security, controlling network communication costs, and monitoring job performance. Employers have been apprehensive about monitoring e-mail because they are sensitive to employees' privacy expectations. Most courts have found that monitoring e-mail in the regular course of business is not an invasion of privacy because in most employment situations, employees do not have a reasonable expectation of privacy.  Establishing a policy is the best way to balance the employee's right to privacy and the employer's need to know. An e-mail policy should address the following issues:

• Business Use. The policy should state that e-mail is strictly for business use.
• Security. Security-sensitive information should not be allowed to be communicated through e-mail.
• Personal Messages. E-mail should not be used for personal business. No solicitations should be conducted through e-mail.
• Offensive Messages. Offensive and harassing communication should be unacceptable and prohibited. References should be made to the company's harassment policy.
• Privacy. Employees should be made aware that all communications over the e-mail are not private. They are open to scrutiny by company personnel. The policy should lessen the expectation of individual privacy.
• Right to Monitor. The employer should reserve the right to monitor e-mail at any time, with or without the employee's knowledge.
• Disciplinary Procedures. Guidelines for violation of company policy should be communicated clearly.

 The FBI has requested a list of all our employees and their Social Security numbers. We also have had the local police ask us for information on an employee. Do we have to comply with these requests?

As a result of the Sept. 11 terrorist attacks and the anti-terrorism law passed in their aftermath, many employers will be faced with decisions on releasing personnel information to federal, state and local officials.  Law enforcement officials are within their rights in asking for information from employers without a court order. However, there may be legal implications for a company that provides information without checking legal requirements and without a court order.       

According to references in the Bureau of National Affairs HR Library, the laws of 19 states include provisions on the disclosure of employment-related information to third parties. Thirteen of these (Arkansas, Colorado, Florida, Indiana, Louisiana, Nebraska, New York, North Carolina, North Dakota, Oregon, South Carolina, Vermont and Washington) have laws limited to public sector employers. The remaining six (California, Connecticut, Illinois, Iowa, Maine and Michigan) include employers in the private sector.

Generally, these laws require employees' written consent for disclosure of information, but not if the information is limited to verification of employment dates, title or position and salary, or if disclosure is required by court order.

When a law enforcement official arrives in your office seeking employee information, immediately contact the point person designated by the company to receive and evaluate such requests. That person first must confirm that the person asking for the information is a legitimate agent of the law enforcement body by checking an identification badge and, if in doubt, calling the organization.

If there is no subpoena but the official asks only for limited information such as employment dates, title or position, or salary, it is appropriate to provide this information in accordance with existing policies.

If the official asks for confidential information, such as an employee's social security number, date of birth or nationality, the company designee ordinarily would deny the request. If there is any question, call the employer's legal counsel.

If the law enforcement agent produces a subpoena, the employer has two courses of action-- either comply with the subpoena or, if there is an objection to producing the information, apply to the court to vacate or modify the subpoena. Either way, the employer should have the subpoena evaluated by legal counsel.

Equal Employment Opportunity (EEO)

 What are the filing requirements for the EEO-l form?

The EEO-1 Form is a report filed with the Equal Employment Opportunity Commission (EEOC), mandated by Title VII of the Civil Rights Act of 1967, as amended by the Equal Employment Opportunity Act of 1972. The Act mandates that employers report on the racial/ethnic and gender composition of their workforce by specific job categories.

All employers located in the 50 states and the District of Columbia who have at least 100 employees are required to file Form EEO-1 annually with the EEOC. Federal government contractors and first-tier subcontractors with as few as 50 employees and $50,000 contracts must file as well.

Employers with multiple sites might be required to file multiple reports. Employers with locations with 50 or more employees will be required to complete an EEO-1 form for each location, as well as a consolidated report that includes all locations and the company headquarters. If a company has locations with less than 50 employees, it will be required to file a consolidated report, as well as provide a list showing the name, address, total employment and major activity for each establishment.

Reports must be filed by Sept. 30. Employment figures from any pay period in the third quarter, July through September, may be used. Some employers who have been granted permission to use year-end employment figures in the past may still do so.

The new reporting system is entirely on the Internet. The EEOC hopes to minimize the time employers need to file and provide employers with access to the last 10 years of their company's historical information. There is no need for software installation since the form and instructions are completely online. If employers have filed an EEO-1 form in previous years, they should find that some information on the form is pre-filed from the previous year. This system ensures data privacy by using encrypted files for data transfer.

Since the EEOC has no method to track how many employees are in your company, the employer must initiate filing. First-time filers should contact the Joint Reporting Committee (JRC) by phone at (757) 461-1213 or visit the JRC web site, http://eeoc.gov/eeo1survey/ . The site has an online form for first-time filers to complete so they can be assigned an identification number.

 Wage and Hour Issues

 Do we have to pay a non-exempt employee for time spent on training?
The following material is found in Ceridian's HR Compliance Reference System:
Training Time
Time spent by an employee engaged in training required by an employer is considered "hours worked," for which the employee must be paid. However, attendance at training programs does not constitute "hours worked" if all of the four following conditions are met:

Example:  The employer asks all employees to come in on Saturday to learn the new computer software package.  This time is considered hours worked.
Example:  In order to improve his chances of promotion, the employer suggests a receptionist take some basic accounting classes offered by the local community college.  The receptionist currently only answers the phone and types letters, tasks that require no accounting skills.  He would be taking the classes on his own time and the classes are not required for his current job.  The employer need not pay him for his time attending the classes.          

 What is meant by the terms "exempt" or "non-exempt"? 

Exempt - An individual is exempt from the overtime provisions of the Fair Labor Standards Act when they are classified as an executive, professional, administrative or outside sales employee, and meet the specific criteria for exemption.

Certain computer employees may also be exempt from the overtime provisions. Several white papers are available on the SHRM website that address the FLSA and the exempt criteria.  Except for certain highly-paid computer professionals and outside sales employees, exempt employees generally must be paid at least $455 per week on a salary basis.

Non-exempt - An individual who is not exempt from the overtime provisions of the Fair Labor Standards Act must receive the overtime premium (time-and-one-half) for all hours worked beyond 40 in a workweek (as well as any state overtime provisions). Non-exempt employees may be paid on a salaried or hourly basis.

Legal Compliance

 What laws are we required to comply with?  Several of them are based on employer size.
Employers with at least 1 employee must comply with:

Fair Labor Standards Act (FLSA)
Employee Polygraph Protection Act
Immigration Reform & Control Act (IRCA)
Equal Pay Act
Federal Income Tax Withholding
Uniformed Services Employment & Re-employment Rights Act of 1994 (USERRA)
Federal Insurance Contribution Act (FICA)
National Labor Relations Act (NLRA)
Consumer Credit Protection Act
Labor Management Relations Act
Uniform Guidelines for Employment Selection Procedures
Employment Retirement Income Security Act (ERISA)
Fair and Accurate Credit Transactions Act (FACT)

Employers with 11 or more employees also need to comply with:

Occupational Safety & Health Act (OSHA Illness/Injury Recording and Reporting Requirements)

Employers with 15 or more employees must also follow:

Pregnancy Discrimination Act
Americans with Disabilities Act
Civil Rights Act of 1964

Employers with 20 or more employees also need to comply with:

Age Discrimination in Employment Act (ADEA)
Consolidated Omnibus Budget Reconciliation Act (COBRA)

Employers with 50 employees or more also need to comply:

Family Medical Leave Act (FMLA)

Finally, employers with 100 or more employees must comply with the:

Worker Adjustment Retraining Notification Act (WARN)
And must complete and report the EEO-1 form to the EEOC
(Executive Order 11246, requires federal contractors with 50 or more employees and $50,000 in government contracts must also file EE0-1 report each year).

           
Hiring and Recruiting

 What should I avoid asking during an interview? 

Interviews continue to be the selection method of choice for most employers because they allow for an in-depth questioning of a candidate, and offer an assessment of a potential candidate's chances for success within the organization. Interviewers need to exercise a measure of caution in preparing interview questions. The interviewer should avoid asking discriminatory questions of a candidate, just as they would with employment applications. Under Title VII of the Civil Rights Act, employers may not consider any information about an applicant's race, religion, creed, sex, national origin or ancestry in making any type of employment decision. There are other laws that also prohibit asking applicants questions regarding their age, disability, military history, union membership or sexual orientation.

 What are the legal issues related to reference checking? 

Conducting background checks is an important part of the selection process in today's hiring game. Negligent hiring has become a common legal claim against employers who have made hiring decisions without diligently making an effort to check references. It is particularly important to conduct a reference check on individuals who are dealing with the public or who are in positions of trust, such as jobs which involve entering customer homes or working with children.

One of the most important parts of reference checking is to obtain a release from the applicant allowing the prospective employer to check references. This is especially important when a credit check will be performed. The Fair Credit Reporting Act (FCRA) imposes specific notification guidelines on employers depending on the kind of credit report done.

 What compliance issues are involved in creating a pre-employment test?

Pre-employment testing is a selection tool that can provide valuable information to aid the selection process. Pre-employment tests can add objectivity to the selection process if applicants for the same position take the same test under the same conditions and if the test accurately measures skills essential to job performance. Pre-employment tests should be validated (content validity, construct validity, criterion-related validity) to ensure that they measure the knowledge or skills that an applicant would need to perform the job successfully.

Many compliance issues should be considered when implementing a pre-employment testing program. The Uniform Guidelines on Employee Selection Procedures of 1978 is one tool that can help with compliance issues. The Guidelines set forth a single set of employment standards for all employers covered under Title VII or Executive Order 11246, and they aid in determining whether an employer policy or practice causes a "disproportionate adverse impact" on the employment opportunities of any race, sex, or ethnic group. To determine whether a selection procedure causes an adverse impact, the EEOC applies the "4/5ths rule" or 80% rule. The 80% rule involves comparing the hiring rates for different groups. If the selection rate for a protected group (defined by race, ethnic origin, sex, etc.) is less than 4/5ths (or 80%) of that for the group with the highest selection rate, the procedure is considered discriminatory.

Pre-employment testing must adhere to the employment provisions of the Americans with Disabilities Act (ADA). If a test screens out or tends to screen out a person with a disability, the test must be job related and must be consistent with business necessity. Even if a test is job related and justified by business necessity, an employer has an obligation to provide a specific reasonable accommodation, if necessary. The reasonable accommodation obligation applies to testing by protecting persons with disabilities from being excluded from jobs that they are capable of performing, because a disability either prevents them from taking a test or negatively influences a test result. However, an employer does not have to provide an alternative test format for a person with an impaired skill if the purpose of the test is to measure that skill.

Employers are encouraged to check their state laws before implementing a pre-employment testing program. If a testing program involves medical examinations, AIDS testing, or genetic testing, other rules and regulations govern those types of tests.

 What do we need to do to implement a pre-employment drug screen?
The design and implementation of a pre-employment drug screening program should involve the input and cooperation of HR, legal counsel, and security. Make sure that the policy for testing complies with the drug testing laws in your state.
The requirements of relevant laws should be incorporated into the program. Local and state laws, in addition to federal laws, may need to be reviewed. Federal laws that may be applicable include the following:

The types of substances to screen for and the threshold for a positive result should be identified. Legal requirements pertaining to the screening of the substances should also be identified.

Determine whether urine or blood sampling will be used. Urine sampling requires the establishment of procedures to prevent substitution or debasing of the sample by the addition of foreign materials.

The privacy of samples should be maintained by establishing a sample identification method that does not include the applicant's name. In addition, a sound chain-of-custody procedure must be used.         

When selecting a lab to conduct the testing, choose one that meets your organization's testing needs. In addition, the lab should have a history of highly reliable results and a methodology to confirm initial positive results. Gas chromatography and mass spectrometry are reliable methods for verification. Also, the lab should be enrolled in a minimum of one independently administered program to monitor its success rate.

Check whether the lab is licensed and accredited per applicable local, state, and federal laws. Identify all services provided and the associated fees to enable a cost-benefit analysis.  Set up a procedure to frequently check the quality of service provided by the lab.  Notice of the substance-screening policy should be placed on employment applications.  Notify the applicant of the testing procedure and test the applicant only after he or she has been notified of the test and procedures and has given his or her consent. Test all applicants for all jobs.

Employees should be given an opportunity to retest with a split sample, as well as a means to challenge results. The consequences of a positive test result should be made clear to the applicant.

Sources:
Bureau of National Affairs (BNA)
Minding Your Business by M. J. Lotito and L. C. Outwater (1997)

 What are the compliance issues involved in conducting pre-employment criminal background checks?

Employers who use police records to screen applicants must take care not to tread on risky legal ground. The first thing to consider is that an arrest is not the same as a conviction. Basing an employment decision solely on an applicant's arrest record can be discriminatory, because it has been shown that certain protected classes tend to have a higher arrest rate. To help minimize potential discrimination charges, an employer should limit record checks to convictions rather than arrests. If an applicant's background check does show a record of a conviction, then the employer should consider whether business necessity warrants rejecting the applicant on the basis of that conviction. In weighing the business necessity standard, the EEOC guidelines state that an employer should consider the following when basing employment decisions on conviction records:

State laws vary regarding an employer's use of or inquiry concerning criminal records. Some states require employers to conduct criminal record checks for certain positions, such as law enforcement, childcare workers, and drug interdiction.  Generally speaking, prospective employees are not normally required to disclose any information concerning arrests or criminal charges that did not result in an actual conviction, nor are they required to disclose information regarding convictions that have been pardoned or protected by the courts in some other way. Last but not least, some states require employers who use criminal records to advise applicants that criminal records will be used and to obtain written authorization for release of such records.

Criminal record inquiries can be a valuable tool when used properly and within the guidelines of federal and state laws to ensure that an employer will not be charged with negligent hiring or retention claims. To ensure compliance with both federal and state laws, an employer must carefully consider employment decisions that will be based on past criminal history.

 What are the compliance issues involved in conducting pre-employment physical examinations?

The law that most affects an employer's ability to require pre-employment physical examinations is the ADA. Essentially, an employer may require a physical examination only after a contingent offer of employment has been made. No physical examination can be required before an offer is made. Physical examinations can be required only if the following conditions exist:

Benefits

 What is HIPAA and how does it relate to COBRA? 
The Health Insurance Portability and Accountability Act, (HIPAA) became effective on July 1, 1997 with staggered effective dates for certain provisions of the law, depending on a particular plan's official plan year. Under the new HIPAA regulations, certain requirements are imposed on group health insurance plans to make health benefits more "portable" for employees moving from one employer to another. The law also requires that any individual who had coverage under a group health plan be provided with a certificate of credible coverage, stating the actual length of the coverage period. HIPAA also prohibits denial of an individual's coverage based on that particular individual's health status. In addition to the above, certain limitations are now also placed on a health insurance plan's pre-existing condition exclusions.

HIPAA also imposed certain changes to the Consolidated Omnibus Reconciliation Act (COBRA), effective July 1, 1997. Under the former COBRA regulations, the disability extension, from 18 months of coverage to 29 months of coverage, only applied to individuals who were actually disabled at the time of the qualifying event. Under new HIPAA regulations, the disability extension is now also applicable to any individual who became disabled within the first 60 days of COBRA continuation benefits. Another amendment prohibits employers from cancelling an individual's COBRA continuation benefits because that individual has obtained new coverage under another plan. Last but not least, pre-existing conditions can be satisfied by providing a certificate of credible coverage under COBRA continuation benefits.

Final HIPAA Privacy Rules were published on August 14, 2002. Those subject to these Rules must provide notice of a patient's privacy rights and the privacy practices of the covered entity. Providers treating patients must make a good faith effort to obtain a patient's written acknowledgment of this notice. The final Rule removes mandatory consent requirements that prevent the patient's access to health care. See http://www.hhs.gov/news/press/2002pres/20020809.html for more information on the Final HIPAA Privacy Rules.

 When are we legally required to offer benefits to part-time employees? 

Eligibility for voluntary benefits (vacation, sick leave, medical insurance, retirement benefits, life insurance and most disability plans) is at the discretion of the employer. Employers should be certain that their policy is clear on what benefits are offered to full time vs. part time employees and the eligibility requirements for these benefits (number of hours, types of benefits etc.) The policy should be administered in a fair and consistent manner.  One exception arises under the Employee Retirement Income Security Act (ERISA) with the "1,000 hour rule". Employees who have completed 1,000 hours of service in a period of 12 consecutive months are eligible to participate in any company pension or profit-sharing plan that is offered to other employees.  This requirement applies to both full-time and part-time employees.

There are mandated benefits such as unemployment and workers' compensation that may be required under state law. Employers should check the laws of the states in which they operate for these requirements.

 Can we have a mandatory retirement age in our retirement plan provisions? 

The Age Discrimination in Employment Act (ADEA) generally prohibits a qualified plan from discriminating against a participant because of age. Such discrimination includes stipulating a mandatory retirement age for employees. A qualified plan must allow all employees to participate, regardless of age, when they meet the plan's eligibility requirements. A qualified plan may not reduce or stop the accrual of benefits under the plan simply because the participant has reached a certain age. Qualified plans may put in place certain benefit caps. For instance, the plan may set a maximum number of years of service that may be counted under its benefits formula or may provide for a maximum benefit that can be earned. The plan may provide for a reduced benefits accrual rate after a prescribed period of time. Plans may set a normal retirement age, which is the lowest age specified in the plan at which the employee may retire and still receive full benefits under the plan.

 What is an employer's obligation under the Uniformed Services Employment and Reemployment Rights Act (USERRA) to return employees to work when they return from military leave?

According to USERRA, in most situations, employers are obligated to re-employ workers who are returning from military leave. To be eligible for re-employment, employees must have provided notice to the employer of their need to take military leave, if possible. Upon their return from military leave, employees must return to work or apply for re-employment within the prescribed time period. Also, to be eligible for re-employment rights under USERRA, the employee must have been discharged under honorable circumstances.

 Employees who have taken military leave for more than five years (accumulated) are not entitled to re-employment. Independent contractors and most temporary employees also are not eligible for re-employment. Lastly, if the employer's circumstances have changed so significantly that the employee's position has been eliminated, then the employer may not be obligated to re-employ that individual. Before refusing re-employment to a returning employee, however, the employer should consult with an attorney.

 What are the requirements under the Veterans Benefits Improvement Act (VBIA)?

There are posting requirements under the Veterans Benefits Improvement Act of 2004 (VBIA). The VBIA amends the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). It provides additional benefits to veterans in the areas of housing, education and health.

Under VBIA, employers covered by USERRA are required to extend health care continuation coverage or employer health care coverage from 18 months to 24 months. This provision became effective immediately when the act was signed. It applies to employees who elected coverage on December 10, 2004, or later. Employers cannot charge more than 102% of the premium plan to those employees who elect to continue health care coverage.

An additional requirement under the VBIA is for employers to provide notice of their rights to employees. This can be accomplished by posting these requirements where other notices are customarily posted. The posting requirement became effective March 10, 2005.

 Where can I get information about the Family and Medical Leave Act (FMLA)?

The definitive source are the Final Regulations - most questions are addressed in the regulations, which are quite readable and are in a question and answer format. The Department of Labor has placed the regulations and related information, including a special information database, at the following location: http://www.dol.gov/esa/whd/fmla/