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July 2010 Newsletter
In this issue:
 A Snapshot of Health Care Reform's Impact on Employers
Amber Wilson Bagley
abagley@cgwg.com
For more questions about health care reform legislation, please contact Amber Wilson Bagley.
Prior to the launch of ED1, only OSHA and MSHA had enforcement data available online. OSHA records will now include information on citations, penalties, reasoning for inspections and descriptions for accidents resulting in injury. OSHA cases must go through a review process before being made available to the public. Cases un-reviewed at this time date back to 2007. WHD will provide information on all closed compliance actions since 2009. EBSA will provide enforcement data on closed cases that resulted in a penalty, beginning in 2009. The data provided by OFCCP includes completed compliance and complaint evaluations since 2004.
Users can search common categories which will open a window to all of DOL’s enforcement actions. The information can be searched by agency or state. All of the searchable categories are cross referenced. According to DOL, the database is a “work in progress.” Eventually, users will be able to search by company and data sets will be available for download.
If you have any questions regarding these resolutions, please feel free to contact any attorney in the Firm.
In addition to the online enforcement database, DOL launched a grants map that offers information on money granted to individual states in 2009. The grants map may eventually be used to accept grant applications. For more information, see http://www.dol.gov/open/#Initiatives.  Implications for Arkansas Employers Jess Sweere jsweere@cgwg.com Currently, Arkansas employers must abide by the Immigration Reform and Control Act (IRCA) when hiring employees. IRCA requires employers to verify that the employees they hire are authorized to work in the United States. IRCA penalties include fines, prison time or both. The Arizona legislation requires employers to abide by the federal guidelines found in IRCA, as well as state provisions. As a result, if an Arizona employer knowingly or intentionally hires an employee not authorized to work in the United States, state sanctions combined with IRCA sanctions will result. The state sanctions include probationary periods – up to 5 years – during which the employer must file quarterly reports regarding each new employee hired. The legislation also authorizes the suspension of business licenses, either temporarily or permanently, depending on the number of violations by the employer. As a result of the legislation, the Arizona attorney general must maintain a database of the employers and businesses that have violated the law, and make court orders concerning these employers and businesses available to the public on the attorney general website. In addition to new sanctions, the legislation authorizes state and local authorities, including county attorneys, to investigate any complaints against employers and provides incentives, including grants and loans, to employers who verify employment eligibility through an E-verify program. The legislation includes defenses that employers may use against complaints, including a good faith defense and an entrapment defense. Even if similar legislation fails to pass in Arkansas, the Arizona legislation may affect Arkansas employers who do business in Arizona. As mentioned above, the legislation authorizes the state to suspend licenses held by the employer, including licenses “specific to the business location where the unauthorized alien performed work.” The Arizona legislation faces several challenges, most notably that it is likely pre-empted by existing federal immigration law. Look for updates in future newsletters. If you have any questions regarding immigration law as it relates to employment, please contact any attorney in the Firm.  Compliance? Elizabeth Rowe Cummings ecummings@cgwg.com On October 28, 2009, the Supporting Military Families Act of 2009 (SMFA) became law. SMFA amended the Family and Medical Leave Act (FMLA) in three ways. The first change provides for the care of veterans with service-related illnesses or injuries up to five years after their last day as a service member. The second change extends the definition of service-related illnesses and injuries to include those that pre-existed service, but were exacerbated by service. The third change permits exigency leave for employees with a family member in any armed service, not just the National Guard. Although the Department of Labor updated its fact sheet on FMLA military leave in February of this year, it does not yet reflect changes made by the SMFA.
1. Caregiver Leave: Veterans’ Injuries and Qualifying Timeframe The new law permits FMLA leave for employees to care for veterans who experience a service-related illness or injury at any time within five years of their last day in the armed forces. This change reflects the growing awareness that certain types of service-related injuries require lengthy, ongoing care or may not be apparent until well after service is over. In addition to expanding the timeframe during which veterans’ health issues may qualify an employee for caregiver leave, the scope of qualifying injuries has been widened. Under the old law, only new injuries and illnesses resulting from service were covered. However, SMFA expanded the scope of covered issues by adding injuries or illnesses that pre-dated service, if they were exacerbated by service. Consequently, an injury or illness that was minor before service may become a leave-qualifying condition during or after service. FMLA still only applies to employers with 50 employees within 75 miles of the location where the leave seeker works. Caregivers must have been employed by a covered employer for at least 12 months, worked at least 1,250 hours in the 12 months prior to leave, and be the spouse, child, parent or next of kin to the veteran. However, it is important to establish whether an employee is taking or seeks to take regular FMLA leave or military family leave, because the length of leave entitlement differs: 12 weeks for regular FMLA leave and 26 weeks for military family leave. 2. Exigency Leave Exigency leave permits family caregivers to take up to 12 weeks of FMLA leave to address urgent matters arising out of the active military service of a spouse, child or parent in a foreign country. Under the old law, only the families of National Guard members qualified and the leave taken had to be related to a “contingency operation,” such as those taking place in Iraq and Afghanistan. The new law removes the requirement of “contingency operation” and replaces it with “active duty deployment to a foreign country.” Additionally, although the nature of qualifying exigencies has not changed, the scope of qualified persons has. All deployments, by any member of the armed services, including the National Guard and the reserves, to a foreign country on active duty triggers the right to take exigency leave by family members for qualified matters. 3. Impact on FMLA Administration In general, the new law will not strongly affect the processes by which you administer FMLA leave. As a practical matter, SMFA simply broadened the range of circumstances under which employers must grant military family leave and exigency leave. Veterans’ service-related injuries qualify employees for five years from the last date of membership in the armed services. Additionally, pre-existing conditions exacerbated by service now also qualify as service-related injuries or illnesses. Because leave limits are different for regular and military FMLA leave, employers should review the cause of leave for current and anticipated leave takers to ensure their leave is designated properly and counted against the correct standard. The circumstances qualifying for exigency leave have not changed. However, employees with a family member in any of the armed services, not just the National Guard, are now qualified to take exigency leave under those same qualifying circumstances. There are two ways in which employers can reduce the likelihood of compliance issues arising from the changes brought about by SMFA. First, ensure that FMLA policies are consistent with the new requirements. Second, check regularly with the Department of Labor for new regulations interpreting SMFA.
If you need assistance in reviewing or updating your policy, or if you have any questions regarding SMFA, please contact our Firm for assistance.
*Editorial support provided by Howard Berkson.
 Congress Pays for "Affordable Care" by Making You Hire More Accountants? Using fewer than 200 words, PPACA modified IRS rules governing Form 1099 administration in a way that will greatly increase accounting burdens for nearly every business in the United States. Beginning on January 1, 2012, a Form 1099 must be issued to every person or entity to which a business of any type pays at least $600 for services or goods, including merchandise, in the course of a calendar year. Generally, neither the nature of the purchase (e.g., coffee and pastries for the monthly meeting), nor the method of payment (check or credit card) is exempt. Every credit card payment will have to be mapped directly to a vendor to check against the spending threshold each year for a 1099 determination. Not only must each business determine its obligation to issue 1099s, it must also store incoming 1099s. Although auditing incoming 1099s is not required, the risk of not doing so is high. Because the IRS will receive client 1099 documents, it is possible that what customers report paying will be compared against the revenue a company reports earning. Although the IRS cannot expect a dollar-for-dollar matchup between 1099 reporting and revenue claimed, a large disparity could trigger an audit. Consequently, ensuring that customer-reported payments are in line with monies received will be an important part of the year-end process. Concerns over the new requirements have already spurred political activity by some organizations, such as the Small Business Council of America, to repeal Section 9006 before it goes into effect.
For more information about how PPACA may affect your business, please contact our firm at 501-371-9999.
*Editorial support provided by Howard Berkson.
Case Notes
Fired for Looking Like Ellen DeGeneres
In Lewis v. Heartland Inns of America, L.L.C., a female employee brought suit against her employer for terminating her because she did not have a “Midwestern girl look.” Read More
ADA Accommodations Begin Before Arriving at Work
In Colwell v. Rite Aid Corp., an employee became blind in one eye, making it unsafe for her to drive at night. The employee requested a shift change (to daylight hours), which Rite Aid would not allow due to seniority-based shift scheduling. Read More
Scotty Shively and Amber Bagley served as panelists on “National Health Care Reform and Its Impact on the State of Arkansas” at the recent Arkansas Bar Association Annual Meeting in Hot Springs. Amber Bagley attended the American Health Lawyers Association’s Annual Meeting in Seattle, Washington, June 27-30.
R. Scott Zuerker presented “Independent Contractors and Your Bottom Line” at a June 17 seminar co-hosted by CGWG and Bell & Co. of North Little Rock.
Bo Loftis served as a presenter for the National Business Institute's Continuing Legal Education seminar titled “Accounting 101 for Attorneys” in Fayetteville and Little Rock on June 16-17.
Allen Dobson participated in a "Positive Employee Relations" workshop at the Black River Technical College in Paragould on April 28, speaking about harassment prevention, supervising a web workforce and retaliation claims. Rick Roderick presented a “Labor and Employment Law Update” at the Twin Lakes Human Resource Association in Mountain Home on April 8. He also participated in a "Positive Employee Relations" workshop at the Black River Technical College in Paragould on April 28, addressing union avoidance and card check, and discipline, termination and documentation.
Carolyn Witherspoon and Bo Loftis co-authored “Crackdown on Employee Misclassification: Recent Developments and What Employers Can Do” for the July edition of The Transportation Lawyer, a publication of the Transportation Lawyers Association.
You can contact Rickie with questions or comments about the firm, including its seminars and sponsored events, at 501-212-1817 or rsmith@cgwg.com.
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