NC Labor Laws
The cost of violating labor laws within the state of North Carolina is punishing. It is important for human resources departments across the state to obey and follow all of the rules and regulations regarding these issues. The purpose of this essay is to describe a hypothetical situation in which a human resources department for a company is tasked to address the issues related to their need for seasonal employees who may be from another country.
This essay will examine all the state and federal laws regarding this issue in order to derive a plan that confines with these laws. I will first describe the scenario and develop an action plan designed to address this issue. The essay will continue to evaluate this plan by stating the competitive advantages and disadvantages of this plan. Finally this essay will speculate what might happen if the situation was not handled in accordance with appropriate employment laws.
The scenario I have chosen to evaluate deals with a company’s need for seasonal employees who may be from another country. This scenario is most prevalent in the agricultural and farming business sectors. The immigration debates that echo throughout the nation have made this problem a popular topic of discussion and relevant to the citizens of North Carolina. It challenging for human resource managers to be fully updated on the complicated and verbose language that is presented within state and federal regulations. The punishment for disobedience to these laws and regulations can affect the entire company making the responsibility of those who are in such a position very vital and important to the overall functionality of the hiring organization.
Complexity of Laws
Unfortunately for the human resource manger there is not a consolidated instruction booklet that combines all the rules and regulations that pertain to this specific scenario. Local, state and federal authorities all have a say in the legality of hiring practices, requiring significant research by the leadership of organizations wishing to abide by the correct manner and avoid severe penalty.
The most recent change to North Carolina’s labor laws deals with a federal regulation stemming from the Department of Labor. According to the North Carolina Department of Labor (NCDOL), ” Session Law 2011-263 was an Act by the North Carolina General Assembly to require counties, cities, and certain employers to use the federal E-Verify program to verify the work authorization of newly hired employees.” This means that each employer, after hiring an employee to work in the United States, shall verify the work authorization of the employee through E-Verify. Each employer shall retain the record of the verification of work authorization required by this section while the employee is employed and for one year thereafter. However,
these rules shall not apply with respect to a seasonal temporary employee who is employed for 90 or fewer days during a 12-consecutive-month period. In other words if seasonal employment is less than 90 days per year, than E-verify rules does not apply.
Migrant and Seasonal Agricultural Worker Protection Act
Another federal law that needs to be addressed is the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). According to the United States Department of Labor, ” The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) provides employment-related protections to migrant and seasonal agricultural workers and is administered and enforced by the Wage and Hour Division of the U.S. Department of Labor.” This act ensures that employers disclose terms of employment to each migrant worker in writing if requested, post safety information, pay each worker wages owed when due with an itemized statement of earnings and deductions and ensure that housing, if provided, complies with federal statutes and standards. The MSPA also demands that human resource managers comply with the terms of any working arrangement made with the workers and keep payroll records for each worker for three years.
Migrant Housing Act of North Carolina
North Carolina has additional regulations for human resource managers to follow to ensure compliance to this scenario. The Migrant Housing Act is one of these laws. This act sets North Carolina standards for migrant housing and requires all farm operators to submit an application for pre-occupancy inspection before migrant housing can be occupied. The State Department of Labor and the local health department conduct inspections pursuant to this law.
Immigration and Nationality Act (INA)
The INA is another federal regulation related to this scenario. It is designed to eliminate discrimination at the workplace and all hiring organizations within North Carolina must adhere to its rules. The North Carolina Department of Agriculture and Consumer Services explains that “The INA is a federal law that was enacted to address the issues of employment eligibility, employment verification, and nondiscrimination. Under this act employers may only hire individuals who are legal U.S. citizens or are aliens authorized to work in the U.S. This act also protects workers (U.S. Citizens and aliens) from discrimination in hiring or discharge on the basis of national origin and citizenship status.
The Fair Labor Standards Act (FLSA)
Another federal regulation that human resource managers must take into consideration is the Fair Labor Standards Act (FLSA). According to the North Carolina Department of Agriculture and Consumer Services, ” the FLSA created a national minimum wage and concerns issues such as overtime pay and child labor. When first enacted this act did not apply to all agricultural workers but was subsequently amended to extend its standards to agricultural workers. The United States Department of Labor enforces the requirements set out in the FLSA.”
North Carolina General Statutes for Seasonal Pursuits
On top of the federal regulations previously mentioned, the state of North Carolina offers defining rules on what is a seasonal employment pursuit. This statute defines the term as ” one which, because of seasonal conditions making it impracticable or impossible to do otherwise, customarily carries on production operations only within a regularly recurring active period or periods of less than an aggregate of 36 weeks in a calendar year.”
Human Resource Plan
Wagner (2011) offered six guidelines to ensure human resource practices are complying with seasonal hiring laws. They include, evaluate your needs, look within, look ahead, advertise smartly, follow the laws and pay attention. The proposed plan for this scenario will be based on these principles.
Step 1: Evaluation
Before implementing any type of human resource plan, leadership within the human resources department, along with other important leadership of the hiring organization, needs to come to an agreed conclusion about their situation. In this step, needs are identified, problems are identified and tasks are assigned. Anyone within the organization that holds leadership responsibilities should be included in this planning stage.
Step 2: Educate
The many federal and state laws and regulations regarding this scenario are quite confusing and scattered. This needs to be addressed by the human resources action plan. Everyone within the HR department should be knowledgeable about each and every rule. This may take some time and effort requiring specific instruction and testing on the material. Information regarding these regulations should be posted and distributed to all key players within the hiring organization.
Step 3: Create a screening process
In order to ensure each seasonal migrant worker is employed under legal circumstances a thorough and accurate screening process needs to be developed and implemented. This screening process should involve interviewing, or re-interviewing, seasonal employees to ensure that they are aware of important information and that the human resource department is aware of special circumstances of the seasonal workers. A complementing filing system should accompany this screening process to ensure accurate record keeping and provide a useful database of information.
Step 4: Take action
When discrepancies are noted within the screening process, it is extremely important that the human resources division of the hiring organization takes immediate and sustained action towards fixing the problem. Leadership should be notified when problems arise or when specific guidance is needed to fix the problem. It is important that strict timelines are set to ensure that when violations, or potential violations of laws are exposed that they are properly addressed to lessen the chances of punishment or corrective actions.
Step 5: Systematic review
Labor laws at all levels of government have the potential to change very rapidly. It is extremely important that the human resources department have installed a method to review new laws periodically. This event should take place at least every quarter if not every month. Human resource managers need to stay abreast of changes or risk the chance of violating new laws and suffering the punishing consequences.
Disadvantages of Plan
A human resource action plan dealing with labor laws requires much time and effort. Many labor hours will be required to effectively deal with this problem. In many cases, competing organizations will ignore many of the labor laws allowing for cheaper labor possibly lowering the competitive advantage the company might experience. Human resources departments may also need to invest in hiring more employees dedicated to ensuring compliance of these laws which may, in the short-term, also risk some competitive advantage within the business sector.
Advantages of Plan
Punishment for disobeying any of the previously explained laws and regulations may be extreme. Having a human resource plan designed to fix the proposed scenario significantly decreases the chances of punishment. In one example, the MSPA’s punishment may result in significant fines. The Department of Labor states that “Administrative actions under MSPA include penalties of up to $1,000 per violation and, in the case of farm labor contractors, revocation or suspension of existing certificates and denial of future certificates of registration. Failure to comply with MSPA may result in civil or criminal prosecution. To insure compliance with MSPA, the Secretary of Labor may seek court injunctions prohibiting further violations and may bring criminal charges. Courts may assess fines of up to $10,000 and prison terms of up to three years in criminal cases. In addition to the above remedies, individuals whose rights under MSPA have been violated may file suit directly in federal court for damages.” Each law and regulation mentioned in this essay carries a significant penalty that may have damaging consequences.
The role of the human resource department is increasing in importance every day. There are many local, state and federal regulations that need to be adhered to or the hiring company may face serious punishment. The changing state of labor and labor laws requires thoughtful planning and consistent execution in order to prevent violations and remain competitive with competing forces.
North Carolina Department of Agriculture and Consumer Services. Migrant Workers. Viewed on 9 Feb 2013. Retrieved from http://www.ncagr.gov/aglaw/migrant_workers.htm
North Carolina Department of Labor. Labor Laws. August 2011. Retrieved from http://www.nclabor.com/laborlaws.pdf
North Carolina Department of Labor. Verification of Work Authorization (E-Verify). North Carolina General Statutes Chapter 64, Article 2. Viewed on 9 Feb 2013. Retrieved from http://www.nclabor.com/legal/e_verify/E-VerifyStatute&Rules.pdf
United States Department of Labor. The Migrant Seasonal Agricultural Worker Protection Act (MSPA). Viewed on 9 Feb 2013. Retrieved from http://www.dol.gov/compliance/laws/comp-msawpa.htm
Wagner, V. (2011). Seasonal Hiring: How to be legal, ethical and productive. Tribe HR, 10 November, 2011. Retrieved from http://tribehr.com/blog/seasonal-hiring-how-to-be-legal-ethical-and-productive/
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