Question:
How can we defend against a situation where we: a) accommodate a disabled employee; b) risk that the disability will get worse as a result of working and we’ll end up with a workers compensation claim?

Can we deny the accommodation based on the belief that the disability will worsen as a result of the person’s continuing to work?

Answer:
With one exception, you usually can’t deny an accommodation based on the belief that work in general will worsen the condition and lead to a comp claim, explains attorney Adele Abrams, who specializes in ADA compliance.

The exception: The U.S. Supreme Court ruled in favor of a company that denied employment to a worker whose disability would have worsened as a result of exposure to chemicals common in the company’s factory.

So, if you can show a specific danger to the employee, that makes for a stronger case for denial.

Employer taxes are on the rise again — and the expected result is deeper cuts into benefits and comp budgets.

What’s happening? Due to high jobless rates, states’ unemployment funds are drying up. And to replenish the coffers, several states are raising employer taxes.

36 states will get hit

In total, businesses in 36 states are getting slapped with a higher tax bill.

The lucky ones will end up paying only a few dollars more per worker. Others will pay nearly $1,000 more.

The impact on benefits, comp

By taking more money from employers’ payroll budgets, economists predict this will spell even more trouble for employee compensation and benefit levels.

Some even fear that the hikes will contribute to further joblessness.

Where — and how much

Here’s what some states are getting hit with:

• the average tax for businesses in Pennsylvania will increase to $432 per worker (up from $384)
• Virginia employers will pay $171 per worker (up from $95), and
• employers in Hawaii face a gigantic increase to $1,070 per worker (up from $90 per worker).

More bad news: You don’t have to be in a state where the unemployment fund’s gone bankrupt to see an increase.

Even employers in states where unemployment funds are still in the black face tax hikes.

Example: Texas has increased the average tax on employers to $165 per worker (up from $89).

Spurred by reports that the E-Verify system has glaring holes (see ), lawmakers are looking at bills that would require all workers to produce ID cards that verify eligibility to work in the United States. The cards would have photo IDs and some sort of biometric info, such as a fingerprint.

Some particulars of the bill:

• People currently employed wouldn’t be required to obtain a card unless they switch jobs.
• Requirements would start with designated industries  that rely heavily on illegal immigrants in their work force.
• Enforcement eventually would be phased in for all worker in all industries.

But it would eventually reach tens of millions of Americans, including citizens and immigrants, who are holding jobs legally.

What chance does such a bill have to become law? Congress is hearing a bunch of complaints that could become insurmountable obstacles:

• Cost and inconvenience. The U.S. Chamber of Commerce has raised concerns about the costs to employers and potential difficulty checking the biometrics. Card scanners would cost employers between $700 and $800. The bill’s proponents say small employers could be exempt from purchasing scanners and instead send applicants to government offices.
• The “creepy factor.” Getting Americans to latch on to the idea of a scannable ID card is a tough sell. Privacy advocates won’t buy in.
• Amnesty. Some in Congress want to tie approval of a card system to amnesty for illegal workers, who would be required to turn themselves in an obtain an ID card. The word “amnesty” tends to lead to a loss of support for any type of immigration bill.

Loss of privacy is also a primary concern of those who fear the card will develop into a national identification system able to track Americans.

“We’re not only talking about fingerprinting every American, treating ordinary Americans like criminals in order to work. We’re also talking about a card that would quickly spread from work to voting to travel to pretty much every aspect of American life that requires identification,” said Chris Calabrese, legislative counsel for the American Civil Liberties Union.

The Department of Labor (DOL) has gone paperless this year, and all forms for the 2009 plan year must be filed electronically — no exceptions.

To help employers, the DOL has just launched its EFAST2 online filing system — and it’s ready to accept electronic submissions of Form 5500 and Form 5500-SF.

But there’s the rub: Using it requires an e-mail account, which according to recent reports, 20%-28% of small business owners (mostly older owners) still don’t have — leaving them vulnerable to steep fines.

Begin by looking at everyone else who touches claims, says Laura Clifford, owner of California-based Employers Fraud Task Force.

In a recent interview, Clifford said less than 10% of the comp fraud her firm’s uncovered was committed by employees.

The other 90% was committed by everyone else (lawyers, adjusters, bill review companies, etc.).

First step to take

What can employers do? One tactic Clifford says cuts down on fraud: Sit down with workers with an explanation of the benefits (EOB) they’ve received and go over it with them.

Reason: If just one injured worker looked at his EOB and said, “I only went to the doctor twice, not five times — like it says here,” then the employer could look at that doctor and see what other patients the doc has seen.

The U.S. Immigration and Customs Enforcement is pressing ahead with its I-9 inspection campaign. Last week, 180 companies in five states got inspection notices from ICE — the first employers to be targeted in 2010.

The most recent targets are in the states of Alabama, Arkansas, Louisiana, Mississippi and Tennessee. ICE had already done some 1,600 inspections in the second half of 2009 and issued fines ranging from $100 to $1,100 per violation. A Notice of Inspection requires employers to allow ICE to inspect their I-9 forms to determine compliance with the law.

ICE released a statement warning that the inspections are “a first step in ICE’s long-term strategy to address and deter illegal employment.”

Companies that receive a Notice of Inspection will have three days to prepare for a meeting with federal officials in which the company’s Form I-9 records will be reviewed, possibly including payroll documentation.

A recent study released by UCLA-RAND Center for Law and Public Policy detailed the “average” defense costs and jury awards in California employment law discrimination cases.

The study shows:

• The median legal costs to a defendant/employer through trial are $150,000. Even if the case goes to summary judgment — meaning a judge dismisses the charges before going to trial — the employer’s legal costs are about $75,000.
• And all that cash doesn’t include awards to employees who successfully waged lawsuits. The data for 360 cases in which 207 plaintiffs won show the median award in the low six figures.
• Of the 207 cases in the study where the plaintiff prevailed, the verdicts ranged from mid-five figures to low seven figures. The median verdict was in the low six figures.
• Verdicts for race and national origin discrimination tended to be at the higher end; discrimination for medical conditions and sexual orientation tended to be on the higher end.

The fact that the Ledbetter case involved a 20-year-long pay dispute has lead to the thinking that payroll and associated records have to be kept nearly forever. Of course it’s a good idea to keep comprehensive records, but –

• Pay records alone may not be the best defense against a bias claim, and
• Courts recognize that there’s a limit to the amount of recordkeeping companies can maintain, especially small companies.

So, what is the best defense against wage-bias claims? The attorneys at Fisher & Phillips recommend:

• Providing employees with a system to challenge wage decisions on the basis of discrimination. This will both help prevent discrimination as well as provide the employer with the ability to create a record at the time of the decision.
• Adding objective factors to the decisionmaking process that allow decisions to be defended. In other words, try to be sure that your process has defined measures — output, quality, etc. — for awarding pay raises and promotion. That’s better than just vaguely saying or writing, “You did a good job this year.” What’s a “good job”?
• Setting a baseline for all raises and requiring written documentation and review for any deviation from the baseline, up or down. If almost everyone gets, say, a 3% raise, what justifies some people getting more or less than that?
• Providing decisionmakers with forms that guide them in explaining their decisions. As much as possible, don’t leave it up to supervisors to be creative. Hand them the forms that meet your criteria.

Nothing will guarantee that your company will never be sued for wage discrimination. All you can do is set up the best system to prevent lawsuits and to defend yourself in case of a lawsuit.

The Department of Labor’s released new proposed regs on providing advice to participants in individual retirement plans.

The proposed investment advice rules are intended to make sure that workers receive unbiased advice about how to invest in 401(k)-type plans.

The DOL will be accepting comments on the regs until May 5, and the regs are expected to be effective 60 days after publication of the final rule.

Here’s a quick look at some of the key provisions.

According to the proposed rules, investment advice can be given under the Pension Protection Act’s statutory exemption from liability (which allows employers to hire outsiders to provide investment advice to plan participants), but only if the advice is provided in two ways:

• through a financial advisor who is compensated on a “level-fee” basis, or
• through the use of a computer model that is certified as unbiased.

Level fees

The financial services company has to charge a flat fee schedule — in other words, fees don’t change depending on what investment options participants choose.

Computer models

If the rules are adopted, computer models used to offer advice would have to be certified in advance as objective and unbiased by an independent expert.

To comment on the proposed rules, click here.

Westat recently performed an evaluation of E-Verify for the Department of Homeland Security (DHS) and estimated that the program’s “inaccuracy rate for unauthorized workers” is about 54%.

That means one out of every two unauthorized workers is slipping past the system.

The reason? Many unauthorized workers commit identity fraud that E-Verify cannot detect, found Westat.

As a result, the DHS has stated that it’s working to improve the program by adding more databases and a photo-screening tool, and stepping up efforts to detect identity fraud.

However, while there are still problems that need to be worked out, E-Verify’s accuracy has improved.

Westat’s evaluation found that 96% of all workers were screened accurately — correctly identifying 93.1% of people as being allowed to work in the U.S. and 2.9% as unauthorized. Some 3.3% were unauthorized workers mistaken for authorized ones, and 0.7% were individuals who could work in the U.S. but where originally identified as unauthorized.