Unfortunately, Swanberg’s initial success has spawned other like-minded people: Robert Braver in Oklahoma and Michael Todd in Illinois, to name a few. Rest assured that no matter where you operate your business, there is someone just waiting for their phone to ring!

The best news is that Swanberg and his cohorts are completely avoidable if you implement a proper do not call policy and train your staff accordingly. This means adopting a written Do Not Call policy, providing a copy of that policy to consumers upon request, honoring company-specific Do Not Call requests, scrubbing telemarketing lists against the Do Not Call Registry, and training your call center workers in how to handle Do Not Call issues.

If you ignore prudent preventive planning, then when Swanberg or someone else like him calls you, it is like a rooster in the hen house. Your poor employee on the phone with Swanberg will have no idea what he or she is talking about or who he or she is talking to. Unfortunately, a few weeks after that call, you will get a demand letter.

NAPAC members who have doubts about their preparedness, or anyone just seeking a refresher on Do Not Call issues, are strongly encouraged to purchase NAPAC’s Telemarketing Compliance Package available on NAPAC.net.

While E-Verify was originally imposed as a safeguard for public works contractors, recently NAPAC has seen states and localities beginning to impose E-Verify on private businesses and, in some cases, only on private businesses that engage in construction activities! As of today, nearly all employers in Alabama, Arizona, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and Utah must use E-Verify. E-Verify is also required for contractors in Springfield, MO, Salt Lake City, UT, and Putnam County, NY…with others following suit. Failure to E-Verify new hires can result in fines and/or suspension/loss of licensing at the state or local level.

One silver lining: generally, your independent contractors, who are self-employed individuals, would be submitting Form W-9 to you as a full independent contractor, and not Form I-9, and therefore many contractors are not required to use E-Verify.

Practices That NAPAC Members Should Already Be Following

You should ensure that you have the consumer’s prior express written consent to deliver a pre-recorded sales message. Before 2008, you could deliver pre-recorded sales messages to customers without prior express written consent, as long as there was an established business relationship between the parties. Today, while an established business relationship may allow you to telemarket the consumer, you cannot make a pre-recorded sales message without the consumer’s prior express written consent to receive that type of call.

Obtaining prior express written consent involves having a signature and being able to show that the consumer:

• Received “clear and conspicuous disclosure” of the consequences of providing the requested consent, i.e., that the consumer will be receiving future calls that deliver prerecorded messages by or on behalf of a specific seller; and
• The consumer agrees unambiguously to receive these calls at a specific telephone number; and
• The written consent cannot be obtained as a condition of purchasing a good or service.

Practices That NAPAC Members Need to Start Following

There are two changes that are new and will affect NAPAC members who telemarket. First, the consumer’s prior express written consent will now be required any sales calls to a mobile telephone. Second, if a live telemarketer is not available to speak with the consumer who has been called within two (2) seconds after the greeting is completed, the prerecorded message must provide:

• A prerecorded identification and opt-out message that is limited to disclosing that the call was for “telemarketing purposes” and states the name of the business, entity, or individual on whose behalf the call was placed, and a telephone number for such business so the consumer can call back and make a do-not-call request during regular business hours – and the call back number may not be a 900 number or any other number where charges exceed local or long distance transmission charges; and
• An automated, interactive voice- and/or key press-activated opt-out mechanism that enables the called person to make a do-not-call request prior to terminating the call, including brief explanatory instructions on how to use such mechanism. When the called person elects to opt out using such mechanism, the mechanism must automatically record the called person’s number to the seller’s Do-Not-Call list and immediately terminate the call.

These new changes do not have effective dates yet, but when dates are announced, they will be provided in a future NAPAC Report.

The Fair Playing Field Act of 2012 would have two major effects. First, it would repeal a business safe harbor that allows a business to treat workers as independent contractors for employment tax purposes if the company has had a reasonable basis for such treatment and has consistently treated such employees as independent contractors by reporting their compensation on Form 1099s. Second, it would require that businesses that use an independent contractor “on a regular and ongoing basis” provide each independent contractor with a written statement that notifies the independent contractor of the following:

• The federal tax obligations of an independent contractor;
• The labor and employment law protections that do not apply to an independent contractor; and
• The right the independent contractor has to ask the IRS for a determination whether he or she is an employee or independent contractor.

Commentary: As all NAPAC members can understand, if you are required to provide a written statement to your independent contractors informing them of their federal tax obligations and notifying them of the employment law protections that do not apply to them, they may not be so keen to being independent contractors. In essence, you will be telling your independent contractors that they have to pay self-employment tax and are not eligible for medical benefits, vacation, pension, insurance, worker’s compensation, or employment benefits.

Moreover, being required to tell the workers how they can seek a determination of their status from the IRS will only lead to problems. In 2008, such determinations resulted in the IRS finding “employee status” 72 percent of the time. In addition, once a worker is deemed a misclassified employee, that employee, or a group of such employees, will find a “1-800-SUE-YOU” lawyer and claim that you owe them benefits including overtime.

If 5 Justices vote that government does not have the constitutional right to force citizens to purchase health insurance, the Court must then decide what portions of the law can continue to exist in light its ruling. The law is incredibly interwoven, so deciding what portions of the law could survive is not an easy task. The Court should issue its opinion in the summer; quite possibly on June 28.

The prospects for this bill becoming law are not good…at least right now. With Democrats in control of the Senate, the bill has no real chance of being passed by the Senate. If Republicans take control of the Senate in 2012, and retain control of the U.S. House of Representatives, they should be able to pass the bill in both chambers of Congress. The question would then be, if President Obama were to win a second term, would he veto the bill? The chances are very high given the President’s position as a strong supporter of the current lead paint laws.

In reaching this decision, the court said the following:
“This is not the first court to reach the conclusion that regulations requiring employers to post legal notices do not violate the First Amendment…an employer’s right to silence is sharply constrained in the labor context, and leaves it subject to a variety of burdens to post notices of rights and risks….”

As has been noted in previous NAPAC Report articles, the posting requirement applies to all union and non-union, private-sector employers that are subject to the National Labor Relations Act, which will include most home improvement and remodeling companies. The notice must be posted at conspicuous places, readily seen by employees, including all places where notices to employee are customarily posted. The poster must be posted by April 30, 2012.

The poster is available to NAPAC members at www.NAPAC.net.

However, not all was lost in the court battle. While upholding the NLRB’s authority to require the notice, the court held that failure to post the notice as required could not be automatically deemed a violation of law subjecting the company to sanctions. Instead, the NLRB may only sanction employers for not posting the notice if the company’s failure “interferes with, restrains or coerces employees” in their exercise of guaranteed rights.