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Avoid These Legal Snares in 2016

We always like to look ahead and advise our business clients about legal issues that may receive more attention throughout the year. Some are pushed to the forefront by public policy and politics – immigration, for example. Other issues, such as data protection and workplace harassment training, always are important, but the beginning of the year is a good time to review whether your business follows best practices.

Immigration workplace audits could return

Immigration is receiving attention in the presidential campaign, and it’s likely that a Republican administration would tighten enforcement. Now is the time to make sure your business is complying with requirements to hire only documented workers. Even under current law, violations can result in hefty fines and headaches. Immigration enforcement agents, usually from Immigration and Customs Enforcement, or ICE as it is commonly known, can visit a business at will and demand to see proof that every worker is eligible for employment in the U.S.

This largely hasn’t happened over the past several years as the Obama administration instructed ICE to reduce workplace visits in favor of paper audits. In the first five months of the 2015 fiscal year, ICE conducted 181 on-site audits and brought charges against 27 employers across the entire U.S., according to the Center for Immigration Studies. In 2013, there were more than 3,000 workplace audits and 179 employers were charged with violations.

This change in focus means employers’ risk of an audit is virtually nil at present. But don’t be lulled into complacency. A new GOP administration or an incident could prompt ICE to ramp up enforcement overnight. Even if you aren’t fined or charged, you could be forced to terminate workers who are vital to your business.

Be sure to have I-9s on your employees and use E-Verify, the federal program that confirms authenticity of documents.

Health care providers: Beware Medicare audits

There are huge rewards for whistleblowers who expose fraudulent billing in Medicare, and this has created an aggressive industry of plaintiffs lawyers. Whistleblowers can receive up to 30 percent of the amount the government recovers, and there are cases where clerical employees with knowledge of fraud have been rewarded with hundreds of thousands – or even millions of dollars – for coming forward. 

If you are in the health care industry, you know that the rules governing billing, the medical necessity of procedures and referrals are exceedingly complex. The most conscientious and honest provider can run afoul of these rules and find themselves reduced to ruin by civil – and even criminal – investigations.

We recommend that anyone involved in Medicare billing periodically hire an outside consultant to come in and confirm that they are in compliance.

Update harassment training

Sexual harassment in the workplace filled news reports in 2015 with accusations against high-level executives, university professors, entertainers and elected officials. While some of these cases alleged conduct that appeared to be egregious, this is an area that is also ripe for misunderstanding.

From the factory floor to the corner offices, you must train everyone in your business to understand what conduct is off limits. Innocent intentions don’t necessarily carry the day in the legal context of harassment.

Our lawyers can help you set up training that takes all of your employees – and especially your managers – through what is acceptable in the workplace.

Button up data protection

Data hacks will only get worse in 2016. Health care insurers Anthem and Premera, the spouse cheating website Ashley Madison, the Internal Revenue Service, the credit reporting agency Experian, and even a firm that sells hacking and surveillance software to law enforcement agencies and governments – The Hacking Team – were all embarrassed by data breaches in 2015. If it can happen to them, it can happen to you.

(Read more about protecting your business from hackers in our previous blog post here.)

No business is immune to the wily ways of hackers, but be sure you are doing everything you can not to become an easy victim. Make sure employees are following best practices for data security and consider bringing in a consultant to assess your vulnerability. I promise you, the consultant will be much less expensive than dealing with the aftermath of a breach.

(Read more about your legal obligations when it comes to data security here.)

We’ll update our clients on developments in all of these areas as the year progresses and in the meantime, we hope you’ll take these small, preventative steps to improve best practices that will help you avoid the more expensive legal problems that can arise when things go wrong.

Jeffrey L. Payne is a shareholder in Turner Padget’s Florence, S.C., office. He focuses his practice on commercial litigation, with an emphasis on business torts, construction, commercial collection, eminent domain, foreclosures, banking and probate disputes. He may be reached at (843) 656-4432 or by email at jpayne@turnerpadget.com.

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