|
Businesses with employees must comply with numerous regulatory issues. Some businesses
attempt to avoid these issues by engaging Independent Contractors rather
than hiring employees or by classifying workers as independent contractors
instead of employees. Both Federal and state regulations govern whether a worker can be
classified as an independent contractor. Make sure you fully understand them.
Heavy fines may be imposed if you have misclassified people who work in
your business and you may have to pay outstanding back employment-related
taxes.
For a listing of the primary agencies you
need to contact if you have employees or independent contractors, do a search
using the Business
Wizard. In Section 3, choose "Employee, Independent Contractor, or
Both."
Following is a list of most of the issues businesses in
Idaho may encounter
when hiring or working with employees or independent contractors.
For a
brief description of an issue and a link to a related Web site, click on the
name of the agency or activity.
Bureau
of Occupational Licenses
 The Bureau of Occupational Licenses
examines applicants and issues licenses to employees and business owners who are
engaged in a number of professions. If your staff members are required to be
licensed and they are not, you could be held liable for any consequences set forth
by the related licensing board.
To find out which professions are licensed by the Bureau of
Occupational Licenses, visit their Web site at http://ibol.idaho.gov/IBOL/General/bol%20boards.htm.
Occupations not listed on the site may be licensed by their particular occupational board,
such as the Board of Medicine or State Bar. To
find a list of these agencies, visit http://www.accessidaho.org/business/licensing.html.
Some professionals can renew their licenses
on-line by visiting https://secure.ibol.idaho.gov/IBOLPortal/Boards/OnLineRenewalApplication/tabid/86/Default.aspx
or http://www.accessidaho.org/business/licensing.html.
Idaho Department of Health & Welfare
Division of Family and Community Services
If you have employees who are required to pay
court-ordered child
support, you will need to become familiar with this agency. The Division of Family and Community
Services receives payments from employers for employee payroll deductions
for court-ordered child support payments. When you hire new employees, the Idaho Department of Labor submits
a copy of your New Hire report to this agency. If an
employee is determined to be in arrears on child support payments, Health
& Welfare will send an income withholding order to the employer.
The order indicates when to begin withholding payments, how much to withhold,
and where to send the withheld funds. The employer may charge the
employee a small fee to cover administrative costs.
An employer may be required to enroll dependent children in the company's
health insurance plan if the children have no other coverage. For
information, visit http://healthandwelfare.idaho.gov/Children/ChildSupportServices/tabid/76/Default.aspx.
If an employee owes child support in
another state, the designated agency in that state may contact the
employer with an income withholding order. Failure to comply with
the order can result in the employer being held in contempt
of court and being fined.
If an employee holds an occupational license and is in
arrears with child support payments, the license can be suspended, as can
the employee's driver's license. A license suspension could affect
your business.
An "Employer's Guide to Child Support Services"
can be found at http://healthandwelfare.idaho.gov/Providers/ChildSupportPartners/tabid/379/Default.aspx.
The guide contains information that will be helpful to you in
understanding and complying with child support laws.
For further information on employer responsibilities call the
Department at (208) 334-2479 or toll-free at 1-800-356-9868, or
visit their Web site at http://healthandwelfare.idaho.gov/.
top
Idaho
Department of Labor
The Department of Labor offers a wide
variety of information and services for employers through its offices
located throughout the state. To find your nearest Department of Labor office,
click the link to the right. The department's Web site can be accessed at http://labor.idaho.gov.
The department oversees the following employee issues: 
Unemployment Insurance: Information about unemployment
insurance (actually a tax, not insurance) can be found in the Taxes section of this site.
Independent Contractors: If you are considering using
independent contractors in your business, click here for a detailed description of
the difference between an Employee and an
Independent Contractor. You could face serious penalties if you
misclassify workers.
Employment and Training: Idaho Department of Labor offers
business employment and training
services. For a description of available services, visit http://labor.idaho.gov/dnn/EducationTraining/tabid/654/Default.aspx.
New Hire Reporting: Employers must report all newly
hired employees within 20 days of the date of hire. Employees who are rehired
after an absence of 12 months or more must also be reported. For
information, visit https://labor.idaho.gov/applications/newhire/.
Minimum Wage: For information on Idaho's minimum
wage requirements, visit http://labor.idaho.gov/dnn/Default.aspx?tabid=695.
The minimum wage increased in 2007 and 2008 and will increase again in
July 2009. Required minimum wage posters can be printed from the Idaho
Department of Labor's Web site at the location listed below.
Employment Posters: To find the 9 labor posters
employers must post, visit http://labor.idaho.gov/dnn/Businesses/EmploymentServices/FormsPosters/tabid/649/Default.aspx. Posters are
available in both English and Spanish.
Farm Labor Contractors: Those who represent
farm laborers in securing work in agricultural positions in Idaho must register
with the Idaho Department of Labor, obtain a license,
and be bonded. For information, visit http://labor.idaho.gov/dnn/lmi/Employment/FarmLabor/tabid/758/Default.aspx.
Information is available in both English and Spanish. Farm labor contractors must also register with the Federal government. For
information, see U.S. Department of Labor below.
Employer Tax Incentive/Tax Credit: Employers who
meet certain requirements may receive a tax credit for hiring employees.
For information visit http://labor.idaho.gov/dnn/Businesses/EmployerTaxCredits/tabid/644/Default.aspx.
Hiring Veterans: For information on hiring a veteran, visit
http://labor.idaho.gov/dnn/idl/JobSeekers/VeteransServices/tabid/666/Default.aspx.
Hiring an Employee with a Criminal Record: For
information about hiring someone who has been convicted of a crime
(not just accused), visit http://www.hirenetwork.org/admin/clearinghouse.php?state_id=ID.
It is possible to obtain fidelity bonding for high risk employees through
a Federal bonding program. Information is available on the above Web site.
Your
business may qualify for a Work Opportunity Tax Credit for hiring an
ex-felon, a welfare or food stamps recipient, a recipient of Supplemental
Security Income benefits (SSI), or another hard-to-place
individual. For information, visit http://labor.idaho.gov/publications/WOTC_Info_Brochure.pdf.
The Fair Credit Reporting Act, administered by the FTC,
covers information that can be legally gathered in a pre-employment
background check (see Background Checks below).
The Act states
that records of arrest cannot be included in an employment background
check after seven years. However, a criminal conviction
can be reported indefinitely. The Fair Credit Reporting Act can be found at http://www.ftc.gov/os/statutes/fcradoc.pdf.
top
Idaho
Department of Commerce
Tax Incentives: Find tax incentives for hiring new employees in
certain rural counties, for creating jobs, and other opportunities at http://commerce.idaho.gov/business/incentives.aspx.
Workforce Training: Find information on the Workforce
Development Training Program at http://commerce.idaho.gov/assets/content/docs/wdtfmarketingbrochure.pdf
Idaho
Commission for the Blind and Visually Impaired
Provides rehabilitation services to workers who are losing their vision
or have lost it due to an injury, illness, or congenital problem. For information, call
the Commission at (208) 334-3220 or visit their Web site at http://www.icbvi.state.id.us/
Idaho Council for the Deaf and Hard of
Hearing
Serves the deaf and hard of hearing and their employers. Find interpreters,
assistive
devices, and information on the Council's Web site at http://www.cdhh.idaho.gov/
or call their office at (208) 334-0879 or (800) 433-1323.
Idaho
Division of Vocational Rehabilitation
The employer of a worker who has suffered an injury or illness
resulting in a permanent or long-term disability that interferes with her/his ability to perform their job should contact this agency
for information about rehabilitation services. Workers who qualify to
receive Social Security Disability Insurance payments should also contact
this agency to learn about assistance programs. The agency's Web site is
found at http://www.vr.idaho.gov/.
Idaho Industrial Commission
Business Registration: If you have employees or make retail
sales, you must register
your business by submitting IBR-1, Idaho Business Registration
application, which can be
completed on-line at https://labor.idaho.gov/applications/ibrs/ibr.aspx. (Please
note, submitting this form does not register your business name
or entity type.)
Workers
Compensation Insurance: Employers having one or more full-time, part-time,
seasonal or occasional workers are required to provide workers’
compensation insurance coverage unless specifically exempt under Idaho law.
Information is available at http://www.iic.idaho.gov/employers/employers.htm
or you can contact a compliance representative by calling (208) 334-6000 or toll free 1-800-950-2110. If
you have employees who are based in Idaho but work across state lines in a
near-by state, they may be covered by your Idaho workers compensation
insurance. Visit the Web site listed above for information.
 Not
all employees or professions need to be covered by Workers' Compensation
Insurance. For more
information on exempt employees or professions, click on the button to the right.
Also see Workers' Compensation on the Insurance
section of this site.
Independent Contractors: If you are
considering using independent contractors instead of employees, be certain
you can legally do so.
For information on
the difference between an employee and an independent contractor, visit Employee
vs Independent Contractor or http://www.iic.idaho.gov/employers/ec_ic_vs_employee.pdf.
If you fail to classify a worker correctly, you could be fined for failure
to carry worker's comp insurance.
Rehabilitation Assistance: If
an employee is injured in an on-the-job accident or suffers a serious
illness as a result of his/her job, the Industrial
Commission will provide rehabilitation assistance. For information, visit http://www.iic.idaho.gov/about_the_iic/divisions/rehab.htm.
The IIC offers an informative Guide
for Employers found at http://www.iic.idaho.gov/employers/guide_for_employers.htm.
Poster: Employers are required to
display a poster indicating that they have worker's comp insurance. The
poster should be provided by the company from whom you purchased your
worker's comp insurance. For information, visit http://www.iic.idaho.gov/employers/posters.htm.
To find your nearest Industrial
Commission office, click on the box to the right.
 Idaho State Tax Commission
If you have an employee who physically works in Idaho,
or if you withhold Idaho income tax from a paycheck, you must open
an Idaho withholding account with the Idaho State Tax Commission.
Withholding Idaho income tax is required when payments are made to an
employee for work performed in Idaho, with some exceptions. Idaho income tax withholding returns
can be filed electronically at http://www.tax.idaho.gov/filing.htm.
 This
is what you need to do to get started:
Employer Tax Incentives:
For tax years beginning in 2005, the Idaho Small Employer Incentive Act
provides tax benefits to taxpayers who certify that they will meet certain
tax incentive criteria. You will find information about the Idaho Small Employer Incentive Act
of 2005 under Form 41 instructions found at http://tax.idaho.gov/forms_bus_05.htm.
Look for "New for 2005." Also refer to Forms 83, 84, and
85 and instructions.
top
Internal
Revenue Service
The Internal Revenue Service's Web site, http://www.irs.gov,
is an easy-to-use resource to help with all your Federal business
and personal tax needs. It contains information on how to obtain tax
forms and publications, tax statistics, tax regulations, taxpayer help
and education, IRS news, electronic services, how to contact the IRS
and ask questions via the Internet, and more.
Employer Identification Numbers (EIN): The IRS issues Employer
Identification Numbers (EIN), also called tax identification
numbers or tax ID numbers. For information, visit http://www.irs.gov/businesses/small/article/0,,id=98350,00.html.
You will need an EIN if you have employees, make retail sales, or do
business with corporations and government agencies. Your bank may also
require you to obtain an EIN in order to open a business banking
account. If your business offers employee health
insurance, your EIN will serve as your National Standard Employer
Identification number for electronic claims reporting. If you change
the name of your business or the entity type, you may need to obtain a
new EIN. For information, click on the IRS link above.
Independent Contractors vs Employees: Employers are often
confused about the difference between an independent contractor and an
employee. For information on the difference and how it affects your
tax reporting, visit http://www.irs.gov/businesses/small/article/0,,id=99921,00.html.
Federal Unemployment Insurance Tax: See the Taxes
section of this Web site for information.
Social Security and Medicare Withholding: Social Security
and Medicare payments withheld from employee earnings are paid to the
IRS. For information, visit http://www.irs.gov/businesses/small/international/article/0,,id=104936,00.html
Self-employment Tax: Business owners who are sole proprietors,
partners, or who own an LLC or S-Corp may need to pay
self-employment taxes, which are a form of Social Security, on their
earnings. For information, visit
http://www.irs.gov/businesses/small/international/article/0,,id=105255,00.html.
Pension/Retirement Plan: For information on establishing an employee pension
or retirement plan and required tax reporting, visit http://www.irs.gov/pub/irs-pdf/p560.pdf
and http://www.irs.gov/retirement/sponsor/article/0,,id=136475,00.html
Information on terminating a pension or
retirement plan and the required tax reporting can be found at http://www.irs.gov/retirement/article/0,,id=110421,00.html
Closing or Changing the Legal Structure
of a Business: If you close your business or change its legal entity
type (legal structure), visit http://www.irs.gov/businesses/small/article/0,,id=98761,00.html
to be certain your reporting requirements are either terminated or
changed to fit your new entity form.
Occupational
Safety & Health Administration
OSHA is the division of the U.S. Department of Labor
that regulates working conditions. They publish the "OSHA Small Business Handbook," which
can be downloaded at http://www.osha.gov/Publications/smallbusiness/small-business.pdf.
The handbook provides valuable information for employers.
For information about OSHA and the services they provide, visit their
Web site at http://www.osha.gov.
Their Office of Small Business Assistance can be accessed at http://www.osha.gov/dcsp/osba/index.html.
Information about OSHA's various training programs can be found at http://www.osha.gov/dcsp/ote/index.html.
Information for Hispanic employers and workers is found at http://www.osha.gov/dcsp/compliance_assistance/index_hispanic.html.
If you employ teenagers, visit http://www.osha.gov/SLTC/teenworkers/index.html
to find teen worker safety and health information in both English and
Spanish.
OSHA maintains an office in Boise at 1150 N. Curtis Rd., Suite 201,
phone (208) 321-2960 or toll-free in Idaho 1-800-482-1370. Free, confidential, on-site consultation
services about workplace health and safety issues that may affect your
business are available.
top
______________________________________________
U.S. Department of Labor
The U.S. Department of Labor regulates working conditions, wages, and payment practices.
These
activities are governed by the Wage and Hour Division, which publishes the
"Handy
Reference Guide to the Fair Labor Standards Act" found at http://www.dol.gov/esa/whd/regs/compliance/hrg.htm.
Wage and Payment Practices: DOL
guidelines classify all employees as either exempt
or nonexempt. Nonexempt employees are entitled to overtime pay if
they work more than 40 hours in a week. Exempt employees are
managers who spend at least 80% of their time (60% in retail and service
businesses) on management duties. They must also supervise at least
two employees and have some discretionary authority over accomplishing
their jobs.
Paying an employee a salary rather than an hourly
wage does not automatically classify her/him as exempt from receiving
overtime pay. Rather, the duties performed determine whether
they are exempt or nonexempt employees. If you have questions about
the status of your employees, contact the DOL. If you fail to pay
overtime to a nonexempt employee, you could be fined for failing to comply
with Federal law. For information, visit http://www.dol.gov/dol/topic/wages/index.htm.
Overtime Pay: For information on
requirements concerning payment of overtime and the federal FairPay
Overtime Initiative, visit http://www.dol.gov/esa/WHD/regs/compliance/fairpay/.
Minimum Wage: Both Federal and state laws
cover minimum wage payment practices. For information on the Federal
minimum wage law, visit http://www.dol.gov/dol/topic/wages/minimumwage.htm.
The minimum wage increased July 24, 2008 and will increase again in July
2009. Idaho's minimum wage is the same as the Federal minimum wage.
Employment Laws: To find out about Federal labor regulations that
may affect your business, visit the Department's e-laws Web site at http://www.dol.gov/elaws.
The "FirstStep Employment Law Advisor" on this site helps employers quickly
determine which of the DOL's major employment laws apply to their
business. If your business is a government contractor or
sub-contractor, visit http://www.dol.gov/elaws/ofccp.htm
to be certain your business complies with all necessary Federal
employment regulations.
The DOL Compliance Assistance Web site at http://www.dol.gov/compliance
offers information on Federal employment rules and regulations and how to
comply with them.
Employment Posters: If you have employees, you must post
labor-related posters, even if you have a home-based business. To
find a list of federal poster requirements, visit http://www.dol.gov/elaws/posters.htm.
Posters concerning Idaho laws can be found at http://labor.idaho.gov/dnn/Businesses/EmploymentServices/FormsPosters/tabid/649/Default.aspx.
Health Plans and Benefits: If your
business offers health insurance, visit http://www.dol.gov/dol/topic/health-plans/index.htm
to find information on how to comply with ERISA and COBRA requirements.
Information can also be found on the Employee Benefits Security
Administration's Web site at http://www.dol.gov/ebsa/.
Employing Teenagers: If your business employs teenagers, you will find much information at http://www.youthrules.dol.gov.
Laws govern the number of hours teens can work, the
types of activities they can perform, and the types of equipment they can
operate based on their age.
Drug and Alcohol-free Workplace: The U.S. Department of Labor
Working Partners division helps employers establish an alcohol and drug-free work place and
provides
information on drug and alcohol use in the work place. The site is
located at http://www.dol.gov/workingpartners/welcome.html.
Hiring Veterans: For information about hiring
or retaining employees who are veterans, including information on
available training grants, visit http://www.dol.gov/vets/.
Disabled Workers: If you employ workers
with disabilities, visit http://www.dol.gov/esa/sec14c/index.htm
to find information about special minimum wage allowances and requirements.
Employing the Homeless: The U.S. DOL offers
programs to train and support homeless individuals and agencies working
with the homeless to assist them with employment. For information, visit http://www.dol.gov/dol/audience/aud-homeless.htm.
Information is also available on training grants available to businesses
that employ homeless veterans.
Farm Laborers: This agency administers
the "Migrant and Seasonal Workers Protection Act" found at http://www.dol.gov/esa/whd/mspa/index.htm.
The Act requires farm labor contractors to be licensed by the U.S.
Department of Labor as well as by the Idaho Department of Labor.
Family and Medical Leave Act: Businesses
with 50 or more employees must comply with this act. For
information, visit http://www.dol.gov/esa/whd/fmla/.
Changes to the act took effect in January 2009. To become familiar with
them, visit http://www.dol.gov/esa/whd/fmla/finalrule.htm.
Military Service: Employees who are
members of the National Guard and who are called to active duty are
covered by the Uniformed Services Employment and Reemployment
Rights Act. The Act requires employers to
reinstate returning employees with the status, seniority, and same rate of
pay they would have obtained if they had been continuously employed. The
law also prevents discrimination in hiring, promoting, or retaining
employees who are in the National Guard. For information on the law and
how it may affect your business, visit http://www.dol.gov/dol/compliance/comp-userra.htm
Pension Plans: Find information on
employee pension and retirement plans and benefits at http://www.dol.gov/dol/topic/retirement/consumerinfpension.htm.
Information on the Pension Protection Act of 2006 can be found at http://www.dol.gov/ebsa/pensionreform.html.
top
______________________________________________
Bureau
of Citizenship and Immigration Services
Federal law requires that all parties in a business have
a legal right to work in the United States. To comply with this requirement,
a Form I-9, Employment Eligibility Verification, must be completed by all employees
and owners of a business. Employees must complete the form
during their first day of work.
Effective December 26, 2007 employers must use a new
version of Form I-9 or face penalties from the Bureau of Homeland
Security. The new form includes changes in the types of documents employers can
accept to verify a job applicant’s identity. The form was updated again in April 2009 to update the types of documents that can be
accepted to verify identity.
Employers must complete their portion of the form,
including recording the documents presented by the employee to verify
identity, by the end of
the third day of employment. Employers must keep the completed forms on
file with their personnel records for at least three years after hiring a
new employee. If an employee resigns or is terminated in less than
three years, the form must be kept on file for one year after the end of
employment.
Be aware: If an inspector visits
your office and you can't produce the forms, you can be fined for each
undocumented employee, including the business owners.
For more information on Form I-9 visit
http://www.uscis.gov/files/nativedocuments/m-274.pdf, Handbook for
Employers. To download Form I-9 in either English or Spanish, visit http://www.uscis.gov/.
top
______________________________________________
Social Security Administration
Federal Law requires that employers
withhold Social Security and Medicare payments from employee wage and
salary payments. For information and forms, visit http://www.ssa.gov/employer1.htm.
Business owners who do not receive a paycheck that includes withholdings
from their business must pay self-employment tax, which is a form of Social
Security, on their earnings. This tax is paid to the Internal Revenue
Service when a business owner files his or her personal income taxes. For more
information, see Internal Revenue Service above.
______________________________________________
Nondiscrimination Compliance
Businesses having five or
more employees
must comply with state and federal laws that cover various types of
discrimination, including discrimination based on race, religion, ethnic
origin, gender, disability, age, and pregnancy. These laws include the Americans with Disabilities
Act and the Federal Fair Employment Practices Act. For information on ADA
requirements, call (800) 669-3362 or visit the ADA Web site at http://www.ada.gov/.
A guide containing ADA requirements for small businesses, as well as other
publications, can be downloaded at http://www.ada.gov/publicat.htm.
You may be eligible for a tax credit if you must make structural changes to your
building or work
area to accommodate a disabled employee's needs. Check with your accountant for
details or visit http://www.ada.gov/taxpack.htm. The
Web site of the Equal Employment Opportunity Commission (EEOC) provides
much information for small businesses, particularly those that do not have
an HR department, to assist with compliance issues. The
site is located at http://www.eeoc.gov/employers/smallbusinesses.html The
Idaho Human Rights Commission enforces both Idaho and Federal human rights
laws. For information on laws that may affect your business, visit the
Commission's Web site at http://humanrights.idaho.gov/. Harassment:
Every business, even a very small one, should have a written harassment policy that all employees read
and sign, since harassment on the job is a Federal offense. See Employee Handbooks
in the Links
section of this Web site for information on creating a harassment policy. top
______________________________________________
Federal Disability
Employment Information
Federal law requires that businesses with 15 or more
employees hire and make
accommodation for disabled workers or current employees who become disabled during
the course of employment. For information about your responsibilities and
for assistance in complying with the law, visit http://www.disabilityinfo.gov.
______________________________________________
Americans with Disabilities Act
The Americans with Disabilities Act gives civil rights
protection to individuals with disabilities similar to the rights provided to
individuals on the basis of race, color, sex, national origin, age, and
religion. It guarantees equal opportunity for individuals with
disabilities in public accommodations, employment, transportation, State
and local government services, and telecommunications. To learn
about your responsibilities under the law, visit the ADA Web site at http://www.ada.gov/.
Top
______________________________________________
Hiring Union Members
Idaho is a Right-to-Work state. Therefore, employees
cannot be forced to join a union, nor can union or non-union members be
discriminated against in hiring, promotion, or termination. If your
business hires union members, you may be asked to negotiate a labor
contract covering wages, benefits, and working conditions. A union
negotiator will represent union members when problems arise concerning
conduct, productivity, and other issues. When the labor contract expires,
your employees could strike if the demands contained in their new proposed
contract are not accepted. If your business hires union members, either as
employees or subcontractors, be sure
you understand the laws with which you will need to comply.
______________________________________________
Performing
Background
Checks
Many businesses are required by law to
check the background of potential employees, independent contractors, and
volunteers. These include businesses that
work with children, the elderly, the physically or mentally
disabled, bank employees, alcohol permit holders, truck drivers, and others. Other
businesses may want to perform some type of background check to be certain
that applicants are honest and don't have issues that may negatively
affect their ability to perform their work, such as an alcohol or drug
problem, particularly if employees have access to money or credit card
information or use company vehicles.
A background check should include verification of references, past
employment, and education as reported on a resume or employment
application. It may also include
obtaining fingerprints, checking the person's credit
record, driving record, past alcohol or drug use, verification of Social
Security number, and/or past criminal
history. If your
business works with children or vulnerable adults, you may need to check
the state sex offender registry.
Many businesses don't have the expertise to
perform a thorough background check and may need to use the services of a
company specializing in background investigations. If you want to
begin the process yourself, you can find information on the Idaho State
Police Web site at http://www.isp.state.id.us/identification/.
For information on fingerprinting, visit http://www.isp.state.id.us/identification/crime_history/fingerprint.html
and http://www.isp.state.id.us/identification/ApplicantNCPAFingerprintProgram.html.
Volunteers - If your business,
church, or
non-profit organization uses volunteers who come
in contact with children or vulnerable adults, they may need to
submit to fingerprinting and a background check. This may include church
volunteers, sports coaches, and volunteer teachers.
Privacy issues - A prospective
employee or current employee's right to privacy may be violated when
performing a background check, so be careful. The federal Fair Credit
Reporting Act (FCRA), administered by the FTC, sets national standards for
employers who want to learn more about an applicant or a current employee.
The Act covers "consumer reports," and employment background
checks are considered a form of consumer report. In addition to credit
issues, the Act covers information that can and cannot be collected about
a person’s “character, general reputation, personal characteristics,
and mode of living.” The Act also limits access to information contained
in a background check to certain key individuals within a
company. For an employment background check to qualify as a “consumer
report” under the FCRA, it must be prepared by an outside agency, not by
your business. For
more information, visit http://www.privacyrights.org/fs/fs16b-smallbus.htm.
The Fair Credit Reporting Act can be found at http://www.ftc.gov/os/statutes/fcradoc.pdf.
______________________________________________
Employee Misconduct
Employee misconduct ranges from simple
issues such as spending too much time on the phone or Internet to acts of
violence. Some situations can be handled with a reprimand. More serious
offenses may require an investigation to substantiate allegations or suspicions.
Situations
warranting an investigation may include:
- Misconduct relating to conditions of employment,
including misuse of equipment, computers, and vehicles.
- Violation of federal, state, or local laws or
regulations, including laws against harassment.
- Violation of any of the business's pre-existing
written policies, including issues covered in employee handbooks.
- Noncompliance with the rules of a self-regulatory
organization that oversees your industry, such as an occupational
licensing board, State Bar, or Board of Medicine.
- Use of alcohol or drugs on the job or any situation
that impairs the employee's ability to safely perform his/her work or
that affects the safety of other employees, customers, or the public.
- Aggressive or belligerent behavior toward the
employer, other
employees, customers, or the public.
- Theft
Depending on the nature of the offense, you may want to hire an outside
investigator to assure that you and your business have some legal protection from
a potential lawsuit. You may also want to contact your attorney before
beginning the investigation. According to the Fair Credit Reporting Act, which covers
pre-employment and current employment investigations, you do not need to notify an employee or obtain permission to perform
an investigation.
If you decide to
take action against the employee after an investigation is completed, you
must give the employee an “adverse action” notice, but only after
the action (such as a suspension or termination) has been taken. An
employee who is the subject of a misconduct investigation is legally entitled to
receive only a summary of the investigation report, but not the full
report, which may include names or other confidential information.
Depending on the situation, the completed investigation report may
need to be
shared with:
- Your attorney
- The police
- Representatives of any federal, state, or local
agency charged with oversight of the business activity in question,
such as the Department of Finance, Department of Insurance, or IRS.
- Any self-regulatory organization with regulatory
authority over the activities of the employer or employee, such as
an occupational licensing board, State Bar, or State Board of Medicine.
- Any other organization as required by federal, state,
or local law.
Do not share the report with other employees or with anyone who does
not have a legal need to know. It is important to protect the privacy of
the employee under investigation.
According to recent amendments to the Fair Credit Reporting Act, an
employee cannot dispute the findings of an investigative report with the
employer, but he/she may be able to file a law suit if wrongful
termination can be proved.
The Fair Credit Reporting Act, which is administered by the Federal Trade
Commission, can be found at http://www.ftc.gov/os/statutes/fcradoc.pdf
For more information on this topic, visit http://www.employeemisconduct.com/
and http://www.privacyrights.org/fs/fs16b-smallbus.htm#9.
|
