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In by-passing both rule-making and an opinion letter, the DOL unilaterally implemented a broad policy without any public involvement.

Regulatory “guides”

Arrest & Conviction Records Te Equal Employment Opportunity Commis- sion (EEOC) oſten works through rule-making but from time-to-time issues guides or guidance, a unilateral declaration of policy.

In 2012, the EEOC issued an enforcement guid- ance governing Arrest & Conviction Records. Te guidance publicizes the EEOC’s position regarding the criminal background screening process.

While not having the force of law, the position signals to employers the EEOC’s willingness to accept and investigate claims from employees complaining about the conduct covered by the guide.

As a result, the guidance will deter employers from using a “check the box” for applicants to disclose prior convictions. Te EEOC guide will cause some employers to discontinue the use of criminal-background checks.

Veterans with disabilities Te EEOC also issued new guidance address- ing the American with Disabilities Act’s (ADA) changes to the employment of veterans with disabilities. Te ADA Amendments Act of 2008 makes it “easier for veterans with a wide range of impairments — including those that are oſten not well understood — such as traumatic brain injuries and posttraumatic stress disorder, to get needed reasonable accommodation.” Te EEOC’s Veterans and the Americans with Dis- abilities Act: A Guide for Employers explains and interprets the protections afforded veterans with service-connected disabilities under the

ADA and the Uniformed Services Employment and Reemployment Rights Act (USERRA). Te Guide also explains how employers can prevent disability-based discrimination and provide reasonable accommodations, according to the EEOC statement.

Te Guide’s Q&A format answers questions such as: • What protections does the ADA provide to veterans with disabilities?

• When is a veteran with a service-connected disability protected by the ADA?

• What steps should an employer take if it asks an applicant to self-identify as a “disabled veteran” for affirmative action purposes?

• May a private employer give preference in hiring to a veteran with a disability over other applicants?

• What are some specific steps employers may take to recruit and hire veterans with dis- abilities?

• May an employer ask a veteran with a dis- ability whether a reasonable accommodation is needed if none has been requested?

• How does USERRA differ from the ADA?

Taxing employee tips Te IRS has issued new guidance (Rev. Rule 2012-18) that provides answers to a number of questions about the taxation of employee tips under the Federal Insurance Contributions Act (FICA). Te guidance focuses on how an employee must report tips to the employer and to the agency, and discusses the consequences for failing to do so. Te guidance also differenti- ates between what constitutes a tip and a service charge for tax purposes, explains when the sec- tion 45B employer tip credit should be applied, and sets forth a series of Q&As for employees and employers.

Copying and removing confidential financial institution information Te Federal Deposit Insurance Corporation (FDIC) has a long history of using Financial Institution Letters (FILs) to publicize a regula- tory position. In a FIL dated March 19, 2012, the FDIC banned a bank from copying and remov- ing paper from its workplace. Financial institu-



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