Because of the likelihood of increased administrative enforcement, we want to highlight a few important regulatory compliance issues that we often find to be the subject of violations. Employers that voluntarily address these issues before receiving an employee complaint or government audit may literally save thousands of dollars.  JacksonWhite Labor and Employment attorneys are anxious to help employers avoid these problems.

1.          Areas of Enforcement.

In a recent meeting with members of the Labor and Employment Bar in Arizona, the Wage and Hour Division of the DOL announced it would be adding new staff members to its department for the purpose of increasing enforcement. In addition, it anticipates opening a Flagstaff office sometime this year. Indications from the DOL are that enforcement will focus on the needs of low skilled and low-wage workers, the agricultural, reforestation and construction industries, government contractors, and the improvement of its response to investigating complaints. Apparently, H2A (agricultural workers) and H2B (non-agricultural workers) Visa compliance issues and compliance with respect to new regulations and statutes protecting military and former military personnel will also be a subject of serious review. Finally, the Obama Administration has repeatedly indicated its objective in enhancing the ability of labor unions to organize employee workforces.

2.         Overtime Requirements.

In general, federal law requires that an employee who does not meet a regulatory exemption to overtime requirements must be paid one and one-half times that employee’s hourly rate for every hour worked in excess of 40 hours per week. We find that employers frequently misinterpret the overtime rules. For example, many believe that if they pay employees on a salaried basis, the payment of overtime is not required. And yet, this is not the basis for an exemption from paying overtime. The overtime regulations provide relatively clear guidance concerning which employees are exempt from overtime requirements and which are not. We find that many employers inappropriately classify employees as exempt when they do not meet the requirements of the exemptions. This exposes these employers to the potential of paying double or treble damages in connection with an administrative enforcement action or a lawsuit.

            3.         Record Keeping.

Some employers who may otherwise comply with the overtime rules and regulations may still be liable if they fail to keep proper records of the work performed by their employees. Even an employer who has properly paid overtime may be liable to pay more if the employer’s records are insufficient to prove full compliance with the law. Regulations require the employer to keep records of information such as:

1. Time of day and the day of the week on which an employee’s work week begins;
2. The rate of pay and the basis of the pay an employee receives;
3. An itemization of all deductions or reductions from pay;
4. Total hours worked for each day and week;
5. Total straight time and overtime paid for each week;
6. Work week schedules of the employees;
7. Total wages paid;
8. The date payment and pay periods occur; and
9. Copies of employment contracts.

            4.         Using Independent Contractors.

An issue closely related to the overtime issue is the classification of workers as employees or independent contractors. Many employers classify and pay employees as independent contractors when they are more appropriately classified as employees under the law. In general, the amount of control that an employer exercises, the extent to which an employer provides tools of a job, and the exclusivity of the worker’s service for a single employer, are important factors considered in determining whether an individual is an independent contractor or an employee. An employer’s failure to properly classify a worker as an employee can result in tax penalties, interest costs, double or treble damages for failure to pay wages, and other significant financial penalties. The determination of a workers status as an employee or an independent contractor must be made under several areas of the law including the overtime rules, tax rules, workers compensation rules, and insurance policy provisions and related rules, to name a few.

5.         Immigration Issues.

In recent years, immigration issues and the lack of federal action with respect to those issues have resulted Arizona legislation designed to penalize employers for hiring unauthorized aliens. Employers are able to protect themselves from liability by taking action at the commencement of the hiring process. Employers must take care once an employee has been hired in responding to questions concerning immigration status to avoid claims of discrimination. In addition, the DOL has indicated its intent to enforce rules within its purview regarding H2A and H2B Visa issues.  So compliance reviews for employees seeking to hire foreign workers are advisable.

6.         Safety Issues.

Both federal and state governments continue to regulate and review safety incidents in compliance of companies around the state of Arizona. Violations of safety laws and regulations can expose employers to significant liability for penalties to the government and civil liability to employees. Employers who are negligent in the enforcement of safety regulations may not be protected, for example, by worker’s compensation statutes, and may therefore be the subject of civil actions by their workers. State and federal regulators can also impose expensive penalties for regulatory violations.

JacksonWhite Labor & Employment attorneys have substantial experience in helping businesses avoid the kind of enforcement problems described above. We represent companies in both government proceedings and private civil lawsuits with respect to discrimination issues, overtimes issues, employee benefits and ERISA issues, employee classification issues, and many other issues affecting the workforces of our clients. We have significant experience both in federal and state courts, and before the Internal Revenue Service, the United States Department of Labor, the U.S. Equal Employment Opportunity Commission, the National Labor Relations Board, the Arizona Department of Occupational Health and Safety, and many other governmental entities and agencies.

We find that many of the problems described above and others can be avoided when employers internally audit their practices and records to insure compliance with these rules and regulations. This is particularly an important step in a time of increased enforcement such as we anticipate may be coming shortly.

For more information on this or to schedule a  consultation, contact Otto S. Shill, III at (480) 464-1111.

Lawful permanent residents can be removed for committing certain crimes. Aggravated felonies and other crimes involving moral turpitude are the most common reasons for removal. However, in some instances, lawful permanent residents can have the removal cancelled. Immigration Judges have discretion to cancel removal requirements for lawful permanent residents if the following requirements are satisfied:

• The immigrant must have had lawful permanent resident status for a minimum of five years.

• The immigrant must have resided in the United States for seven continuous years after being admitted in any status.

• The immigrant cannot have an aggravated felony conviction, as defined by the statues.

Because Immigration Judges have discretion when deciding whether to cancel removal requirements, it is important for immigrants to present their case to the court with care. It is quite important for immigrants facing a removal proceeding to seek legal counsel to help with the matter. The application for cancelation is very long and detailed and the rules are very complicated. An Arizona immigration attorney will be instrumental in helping lawful permanent residents succeed in the cancellation of removal requirements.

For more information on this or to schedule a immigration consultation, contact Grant Walker at (480) 464-1111.

The H-1B Visa Program is designed to bring foreign workers in specialty occupations to the United States for employment. Specialty occupations include professions such as doctors and others that require a minimum of a bachelor’s degree or its equivalent.

U.S. employers play an integral role in bringing these professionals to America. Without an employer sponsor, foreign workers simply cannot obtain an H-1B Visa. It is up to the employer sponsor to file the visa application and provide a fair wage to the foreign worker.

Foreign workers can remain in the United States for a maximum of six years on an H-1B Visa. However, the H-1B Visa is portable, so foreign workers can transfer employment, provided they satisfy all of the requirements to do so, and follow the appropriate guidelines. There is a legal process for changing employment that must be completed with the U.S. Citizenship and Immigration service before the change can be made.

The United States Citizenship and Immigration Service only issues 65,000 H-1B Visas per year. Certain exceptions do apply, however, so that not every foreign worker is subject to this limitation. For instance, foreign workers with a Master’s Degree or higher from an American university are exempt from this cap, and the USCIS allows U.S. employers to hire an additional 20,000 of these immigrants annually. Also, certain foreign workers who come to work for universities or non-profit organizations are exempt from the cap.

Many Arizona employers could benefit from sponsoring foreign workers to help with their business. Finding qualified assistance with a business is not always easy to do, and employers who broaden their pool of prospective employees stand to recruit the most suitable professionals. Immigration attorney, Grant Walker, can help employers utilize the H-1B Visa Program to effectively develop their business. Call (480) 464-1111 to schedule a immigration consultation.

Arizona HOAs’ responsibility to maintain safety in the community’s common areas is multi-faceted.  This responsibility includes keeping the areas free of hazards and unsafe structures, as well as taking measures to keep community members safe from dangers such as unleashed dogs.  It is widely accepted knowledge that dogs sometimes behave erratically.  Arizona HOAs that do nothing to protect community members from being bitten by a dog in a common area can be held liable for damages.

If a dog attacks somebody in a community’s common area, of course the dog owner is primarily liable.  However, certain circumstances may extend liability to also include the HOA.  For instance, HOAs that knowingly turn a blind eye to leash laws may be held liable to dog bite victims.  In addition to contacting law enforcement agencies, dog bite victims should contact an experienced attorney to discuss the particulars of their situation.

Your Home and the Law is authored by the attorneys at JacksonWhite Attorneys at Law and addresses legal issues that arise for renters, homeowners and neighborhoods. Have a question related to your home or community? Send your questions to firm@jacksonwhitelaw.com.

Q: My 24-year-old son currently lives rent-free with my wife and I. Recently, there have been several break-ins in our area. I know that our possessions are covered under our homeowner’s insurance policy but what about my son’s possessions? We don’t consider him a “renter” and he doesn’t have renter’s insurance. Are his possessions covered under my homeowner’s insurance policy?

A: Most of our homeowner’s policies offer personal property coverage for adult children living in our homes. Policies typically define “insured” to include relatives who are residents of the named insured’s household.   Under that definition, a visiting relative would not qualify as an insured as they are not residents of the household.  Case law has distinguished a resident from a visitor as one who lives in a place as to render that person more or less a “consistent part of the community.”

One important thing to remember while we are discussing adult children living at home, if you can convince them to finally leave the nest and live in the dorm, or other university housing, the personal property they take with them will typically be covered under your policy…a win/win solution. 

Jared E. Everton is an insurance and personal injury attorney at JacksonWhite Attorneys at Law. He can be reached at jeverton@jacksonwhitelaw.com. For more information on JacksonWhite, please visit www.jacksonwhitelaw.com.

This article is provided for informational purposes only and is not intended to replace individual legal advice.