The Importance of Compliance in the Workforce
All businesses, whether they are a small privately-owned business or a large conglomerate, are responsible to comply with federal and state laws. Unlawful discrimination, corrupt personnel practices, workplace harassment, employee safety, and wage, payroll, and benefit issues can wreak legal havoc on a business, costing owners hundreds of thousands of dollars in penalties and legal fees. Strong and clearly established corporate policies and procedures can help business owners avoid the hassles and legal problems that can come with noncompliance.
Benefits of a Strong Workplace Compliance Program
Federal, state, and international laws vary greatly, and keeping compliant in the fluctuating climate of our global business environment can be overwhelming. Keeping track of international, federal, and state laws governing the ethical and legal practices for an organization is an ever-changing process. Corporate policies and procedures need to be continuously evaluated and updated.
The main benefits of a strong workplace compliance program include:
- Prevents illegal or unethical actions committed by uniformed employees
- Encourages reporting of illegal and unethical actions of administrators, managers, and colleagues
- Reduces the likelihood for waste, fraud, abuse, discrimination, and corruption
- Sets employee expectations
- Supports the goals of the organization
- Increases productivity
- Promotes corporate growth and sustainability
- Prevents corporate crisis and failure
- Helps in the defense of the corporation should a lawsuit occur
When employees are properly trained and educated on corporate compliance and its importance to corporate success, businesses can operate effectively and efficiently.
Elements of a Corporate Compliance Program
To reap the full benefits of corporate compliance, a company must establish a strong plan. The essential elements of a corporate compliance program include:
- Training: Comprehensive training on business laws and ethical practices that relate to a business, and on the importance of corporate compliance needs to start with a company’s top administrators and trickle down to the general workforce. An employee that does not understand what the laws and regulations are cannot be expected to behave appropriately.
- Hire a Corporate Compliance Officer: A corporate compliance officer is one that consistently reviews corporate policies, establishes a corporate plan, and enforces the policies and procedures that support the compliance program.
- Establish Modes of Communication for Administration and Employees: Communication is essential to corporate compliance. Employees need to have an established mode of reporting non-compliant actions as well as one that counsels employees that violate rules.
- Consistent Review and Evaluation of Corporate Policies: The federal, state, and international laws governing business are in a constant state of change and development. Consistent review of the laws and regulations as well as corporate compliance policies and procedures will ensure that business practices remain ethical and compliant.
- Annual Risk Assessment: It is imperative that corporations identify the biggest risk areas for their corporation and annually evaluate their audit results, recent litigation, compliance complaints, employee claims, and policies affecting each risk area.
West Chester Employment Lawyers at MacMain Leinhauser Help Businesses Establish Corporate Compliance Programs
The West Chester employment lawyers at MacMain Leinhauser help businesses establish corporate compliance programs that protect them from lawsuits and penalties for non-compliance. Call us at 484-318-7106 or contact us online to schedule a consultation today. Our West Chester, Pennsylvania offices serve clients throughout Philadelphia, Chester County, and across the state.
The Importance of I-9 and H-1B Compliance
Today, especially under the Trump administration, there has been much focus on the legality of individuals residing in this country. As such, worksite audits and maintaining a legal work force are imperative. Each U.S. employer is subject to an audit of its workers’ employment eligibility. Due to this, it is important to ensure that each business is being compliant with its Form I-9.
Employers that are sponsoring H-1B workers for employment must have their Public Access Files (PAF) so that they may formulate an understanding of who is permitted to inspect them. It is imperative that businesses adhere to the laws surrounding worksite audits, investigations, and enforcement measures.
Penalties for Non-Compliance
Beginning in January 2017, the U.S. Immigration and Customs Enforcement Agency (ICE) was responsible for issuing penalties to businesses that did not adhere to these laws. Even simple mistakes, such as paperwork violations, can now cost companies anywhere between $16 and $2,126 per each employee’s I-9 form.
Federal law requires that employers verify the identities and eligibility of each person whom they hire. This information must be documented using the Employment Eligibility Verification Form I-9. The purpose of this is to deter illegal citizens from taking jobs within the country. I-9 audits are conducted via the following process:
- ICE/Homeland Security Investigations (HIS) serves an employer with a Notice of Inspection (Pending Audit).
- Employers must produce their I-9 forms and other necessary documents, such as payroll records, with three days of notice.
- HIS audit team reviews every form for technical or procedural violations and allows the employer 10 days to remedy.
Those employers who do not adhere to these laws will likely face civil fines if found during an I-9 inspection. Additionally, if these employers knowingly violate the law, they may even face criminal prosecution. All illegal employees that are found during this process, who are not allowed to stay in the country, are subject to arrest and removal from the U.S.
The H-1B Program
Under the H-1B program, the Department of Labor (DOL) must ensure that H-1B workers receive the wages promised to them on the Labor Condition Application (LCA). Employers must maintain a Public Access File with the correct documents to support that they attest and are compliant. The DOL may only initiate H-1B investigations under one of the following four reasons:
- It receives a complaint from an afflicted individual or organization.
- It receives specific credible information from a reliable source that the employer has not met certain LCA conditions, has engaged in a pattern that demonstrates failure to meet the conditions, or has committed a substantial failure to meet conditions that are applicable to multiple employees.
- DOL has found that the employer has committed a willful failure to meet a condition specified in the LCA or has willfully misrepresented a material fact in the same, over the last five years.
- DOL has reasonable cause to believe that the employer is not in compliance. If this is the case, the Secretary may certify an investigation.
The DOL may determine civil money penalties, among others, dependent upon the type and severity of the violation.
What Should Each Employer Do?
Each employer should make sure to designate who is responsible for dealing with immigration compliance and should review the current procedures, processes, and related documents. The immigration compliance team should also outline a plan if it ends up facing an audit and conduct periodic internal audits to ensure that all documents are correctly prepared. Employers should consider holding Human Resource training for those responsible for compliance.
If you or your company has been involved in any issues surrounding Form I-9 and H-1B Compliance, it is important to contact an attorney that knows what is at stake, what is expected, and how to help your organization. For more information, contact MacMain Leinhauser by filling out an online form or call us at 484-318-7106. Located in West Chester, Pennsylvania, we serve clients from the surrounding areas.
Church and School Compliance
The Charter for the Protection of Children and Young People (The Charter) was established in 2002 in response to allegations of sexual abuse of minors by Catholic clergy. The Charter includes a set of procedures for addressing these types of allegations, as well as guidelines for prevention of future acts of abuse. It aims to promote healing and reconciliation with victims and to create a safe environment within the Church, so that future violations will be less likely to occur.
Background Checks and Training
Article 13 of The Charter states that dioceses/eparchies are required to conduct background checks on all church staff and volunteers whose duties include ongoing, unsupervised contact with minors. All staff members and volunteers working with children are also required to undergo training in the interest of providing a safe environment for children and young people within the Church. To sustain accountability, all parishes and schools are required to submit documentation detailing which workers had completed the screening and training, and which ones had not.
Annual Compliance Report
The Secretariat of Child and Youth Protection (SCYP) is also required to submit an annual compliance report documenting dioceses/eparchies’ progress in implementing and maintaining the standards set forth in The Charter. The report must include the names of dioceses/eparchies that are not in compliance.
According to the 2017 SCYP report, 66 Catholic parishes and schools in the Archdiocese of Newark were not in compliance with The Charter. It is unclear whether the parishes and schools conducted the background checks and training but failed to file the required paperwork, or whether they failed to conduct the required background checks and training altogether.
All parishes and schools are required to apply for access to a server dedicated to performing background checks that investigate workers’ criminal history. According to the SCYP, some parishes and schools have neither applied for access, nor initiated the background check process.
Those charged with overseeing compliance urge parishes to prioritize background checks and training. Pastors are called to make announcements at the end of Mass regarding employee and volunteer compliance.
More than a dozen schools and parishes on the list cite staffing issues and high turnover rates as a major hindrance to compliance. However, various authorities recognize that the noncompliance issue is problematic, and that background checks and training are a must. The director of communications for the Archdiocese of Newark stated that the Archdiocese will be acting aggressively to bring any noncompliant parishes into full compliance.
Standards for Compliance
Churches and schools should bring themselves into compliance with The Charter by meeting several standards as set forth by the Archdiocese, including:
- Having all applicants for Church personnel positions that involve contact with minors read and sign an agreement to abide by the Policies and the Archdiocesan Code of Ethics
- Cooperating, as necessary, with criminal record checks that shall be conducted after hire but before the start of ministry or volunteer work
- Requiring church personnel who are involved with minors to participate in training by attending the Protecting God’s Children program
Bill to Hold Educational Leaders Accountable for Sexual Assault
Motivated by the terrible crimes of sexual abuse committed by Larry Nassar at Michigan State University, and Jerry Sandusky at Penn State University, the U.S. Senate has introduced a bill that would hold university and college leaders accountable for any sexual abuse that happens under their administration. Larry Nassar, a sports doctor, was recently sentenced for molesting hundreds of girls and women entrusted to his care. In 2012, Jerry Sandusky was sentenced to 30-60 years for molesting boys.
The bipartisan group of senators are calling the legislation the ALERT Act, which stands for Accountability of Leaders in Education to Report Title IX Investigations.
Title IX requires any university or college that receives federal funding to establish clear procedures that enable the prompt response to incidents of sexual assault. To ensure compliance with federal guidelines, schools must also have a Title IX coordinator who is responsible for overseeing investigations and carrying out disciplinary actions. The ALERT Act would require that schools also submit annual certification that the President or Chancellor of the school, along with at least one other member of the Board of Trustees, has reviewed all incidents reported to the Title IX coordinator that year involving employee sexual misconduct.
The legislation is sponsored by Senators Gary Peters, and Debbie Stabenow, both representing the state of Michigan, along with Senator John Cornyn of Texas. They aim to protect future generations of students by holding educational leaders publicly accountable for taking sexual abuse more seriously. In both the Nassar and Sandusky cases, although Title IX investigations had been conducted, university leaders failed to follow through and take action. They also denied knowledge of the investigations. The ALERT Act would require that schools confirm there had been no interference with an ongoing investigation by any board member, President, or Chancellor.
In both the Penn State and Michigan State cases, the consequences for the university were severe and costly. Graham Spanier, who was president of Penn State at the time of the Sandusky scandal, and two other university officials received sentences with jail time, fines, and community service for failing to protect the welfare of children. The university’s reputation was tarnished as well as that of the football program that Sandusky was a part of.
The Nassar case eventually brought about the resignation of its president, Lou Ann K. Simon, on the same day Nassar received his prison sentence. Afterwards, the Faculty Senate issued a vote of no confidence in its Board of Trustees – an indication of how tensions remain on campus even after an attacker has been held accountable.
As these cases and the new legislation demonstrate, when sexual assault happens on campus, the stakes are high for educational institutions and their leaders. Attorneys at MacMain Leinhauser are available to present preventative training to our clients to avoid incidents of misconduct or harassment, to assist in the investigation process, and defend such claims when they are asserted. For more information about the services we provide, call 484-318-7106 or contact us online.
Form I-9 Immigration Audits and Investigations
Form I-9 must be completed for every individual that an employer hires regardless of the employee’s citizenship status. The form verifies the employee’s identity and employment authorization. Supporting documents must be presented by the employee and examined by the employer and the I-9 must be kept on record for a designated period. If at any time Immigrations and Customs Enforcement (ICE) wants to inspect an employer’s I-9 forms, they must be made available to authorized agents. Inspection may be carried out after a complaint or on the agency’s own initiative.
When an employer receives a Notice of Inspection (NOI) they are allowed three business days under the law to produce all the requested documents. Any employer who receives an NOI should immediately inform their legal counsel and all subsequent communications should be made through counsel. An NOI is a serious matter that could lead to significant penalties, both civil and criminal, should the employer be found to be non-compliant. Good legal counsel can help minimize the potential liability of an ICE inspection.
A qualified attorney should review all I-9 forms and other requested documents and use the three days granted under the law to make any allowable corrections. For any employee identified in the documents requested by ICE, there must be a corresponding I-9 form. Any employee listed on payroll and quarterly wage reports, or who was hired after November 6, 1986 must have an I-9 form.
Other documents ICE may request include:
- Quarterly payroll records
- Employee identification documents
- List of employees and independent contractors along with their personal information – full name, date of birth, Social Security number, and dates worked
- Corporate documents including quarterly tax documents
- Copies of E-Verify inquiry results
Before providing any documents, it must be verified that the employer has properly completed I-9 forms for all current and terminated employees. Always request a receipt for any records turned over to ICE.
Additionally, the job of legal counsel is to clarify with ICE any ambiguities in the NOI, and to get an idea of how long ICE expects the audit to last and what their expectations are for the investigation. After reviewing the provided documents, ICE may respond with any of the following notices:
- Notice of Discrepancies
- Warning Notice
- Notice of Inspection Results
- Notice of Suspect Documents
- Notice of Intent to Fine
If the employer receives a Notice of Intent to Fine, then it is important to prepare an appeal by requesting a hearing for a Notice of Intent to Fine.
Experienced legal counsel is important in helping a business be proactive about its I-9 documentation and remaining in compliance. For assistance with your business law issue, call MacMain Leinhauser at 484-318-7106 or submit an online contact form.
Proposed Legislation to Combat Bullying
The national “It’s On Us” campaign was launched in 2014 as a means to help put an end to campus sexual assault by educating, engaging and empowering students and communities. Last year, Pennsylvania launched its statewide campaign, “It’s On US, PA” to address sexual assault in schools and on college campuses. In support of this campaign, a Pennsylvania state representative is proposing legislation that would require schools to take a more active role in the prevention of not only sexual assault and harassment, but also bullying.
The state representative notes the link between bullying and sexual violence and emphasizes the need to address bullying where it begins, which is typically in middle school. Under the proposed legislation, the Department of Education would be tasked with developing uniform guidelines for schools regarding how to handle sexual assault, harassment, sexual harassment, dating violence and bullying. Schools would also be required to allow students to anonymously report instances of such abusive behavior.
Students Face Many Types of Violence
According to the state representative, states have been doing a better job of combating bullying over the last decade. However, teens and young adults still experience high rates of all types of violence, including sexual assault, bullying, harassment, relationship violence and abuse and neglect. In his memo to lawmakers, the state representative reports that such violence unfortunately often goes unreported. In fact, fewer than one in ten students who experience sexual assault report it to officials. He does not advocate for harsher penalties for those who engage in bullying but rather, he aims to help schools identify ways to stop abusive treatment.
The proposed bill is one of many in a package designed to support the governor’s “It’s On Us” campaign. The other bills would require colleges to offer a way to anonymously report sexual violence, grant reporting individuals amnesty from drug or alcohol policy violations, and adopt affirmative consent standards that require parties’ continual vocal expression of willingness to participate in sexual activities. The Department of Education would also have to create an annual report card for schools and colleges regarding sexual assault and harassment.
These are not the only proposed laws regarding bullying – a state senator has proposed legislation intended to make bullying a crime. Contrary to the state representative’s view that increased punishment is not the answer, the state senator believes that subjecting those who engage in bullying to criminal punishment is necessary because bullying behavior does not always fit into the legal definitions of existing criminal offenses such as assault. With staunch support for both sides of the debate, it remains to be seen which of the proposed bills will be passed into law.
Many new laws have recently been implemented to combat abusive behaviors in schools, including 2015 and 2016 legislation making hazing and cyber-bullying illegal. Pennsylvania lawmakers are now proposing additional legislation which would require schools to take certain steps towards stopping and preventing bullying. MacMain Leinhauser provides schools in Chester County, West Chester, Philadelphia, Malvern and throughout Pennsylvania with the knowledgeable counseling they need to ensure their statutory and regulatory compliance. Contact us online or call us at 484-318-7106 to learn more about our services.
Common Legal Compliance Issues Faced by Churches
There has been a sea of changes over the past few decades regarding how the government regards churches. Church administrators who are relying on outdated legal information may not only be exposing themselves to tax issues, but they may also be missing out on benefits and tax exemptions that the government has recently made available to them.
Congress and the IRS have taken a keen interest in the activities of nonprofits and churches after years of abuse of regulations and loopholes by parties who are not lawfully entitled to benefits. This abuse resulted in the enactment of section 4958 as well as the Exempt Organizations Executive Compensation Compliance Project (“the Project”). The Project resulted in numerous compliance check letters being sent to thousands of organizations. Many of the examinations that opened with the Project are still going on today. The Report found that there were significant reporting issues, and issues with compliance with federal laws. Violations of tax laws uncovered by the Project have resulted in millions of dollars in fines.
Some of the main compliance issues faced by churches include failure to record activities properly, taking bad advice from the government, church nurseries, changes in the legal definition of a minister, and changes to tax withholdings and deposits.
Churches that participate in a significant number of non-exempt activities are at risk losing their tax-exempt status. The United States Supreme Court has ruled that a single nonexempt purpose, if substantial in nature, could preclude an organization from qualifying as a 501(c). These days, with reductions in congregation size, churches must engage in various other activities to stay afloat, including renting out facilities, bake sales, or running a food service during non-religious events. Churches can engage in these activities, but they must be handled so as to be related to the church’s charitable purpose.
Many churches rely on the advice of IRS employees. In 2011, The Court ruled that the advice of IRS employees is not binding on the agency. This means that every church should seek the advice of an attorney or certified public accountant, as necessary.
Church nurseries must be outfitted with cribs that are compliant with federal code. Insurance companies also often require organizations to be compliant with these regulations. This means that churches should not accept donated cribs for use in their nurseries. It is even risky to donate these cribs to the needy, as it can jeopardize a church’s tax-exempt status and expose it to liability in the event of an injury in one of the cribs.
Defining Church Leaders
In 2012, the Supreme Court questioned whether someone calling themselves a “minister” was enough to confer a tax-exempt status. The ruling turned out to be favorable to religious organizations. Even if most of a minister’s duties are clerical and educational, they may still be considered a minister under the law. You do not need to be devoted to religious ministry exclusively to be legally considered a minister.
Finally, all employees of the church must have taxes withheld, and they must be paid to the IRS electronically using the Electronic Federal Tax Payment System. Most churches must pay payroll taxes on a monthly basis. There are fees for deposits that are made late to the IRS.
Common Zoning Issues
Zoning is the regulation of privately owned land by public authorities. Local governments often use zoning laws for community planning and regulation. Many zoning ordinances (local zoning laws) regulate how land is to be used; for example, some land may be for residential purposes while other land may be for business purposes. Issues often arise when there is a conflict between residential and business interests. Below are some of the most common zoning issues.
Lack of accessible parking can negatively affect businesses but can also decrease residents’ enjoyment of residential areas. The amount of parking available may not be sufficient to accommodate both the patrons of local businesses and residents of local developments. Residents may have difficulty finding parking close to their homes and businesses may have difficulty retaining customers who are frustrated with their inability to find convenient parking.
Zoning ordinances may regulate the size of buildings. These restrictions are in place for both safety and aesthetics purposes. In some areas, structures cannot be too tall or else they may be a hazard to flight safety and air navigation. When the government decrees a structure to be an important landmark, there may be restrictions on new building heights so that views of the landmark are not blocked.
Many local governments have implemented sign laws regulating the size, type and placement of signs. While signs are important navigational and cautionary tools, their improper placement could obscure visibility for drivers or be dangerous distractions. Furthermore, too many signs can create displeasing visual clutter for the community. Homeowners associations also often implement sign restrictions to enhance and maintain communities’ appearances.
Setback is the distance between a property line and where building can take place. In residential areas, these ordinances prevent houses from being built too close to one another and allow for access to ventilation and light. For businesses, setback ordinances often dictate the distance a building may be from the road for safety purposes.
Activities such as solicitation, selling of goods without a license, or smoking may not be allowed in certain areas. Some zoning regulations even have sound decibel limits in order to control noise pollution. These restrictions can vary greatly across cities and neighborhoods as each community aims to accomplish specific goals.
Resolving Zoning Disputes
Zoning disputes are generally resolved in one of two ways. First, the parties may file a claim with the local government. If they are unable to exercise self-help by resolving the dispute on their own, then local government will assist in resolving the dispute.
Second, parties can file a civil lawsuit. This remedy is commonly pursued in cases of alleged civil rights violations. Courts will usually issue an injunction ordering one of the parties to cease illegal or unlawful activity, but they may also award damages to parties who experienced economic losses.