The four court cases HR needs to watch in 2013

What legal issues should HR pros be watching most closely in the coming months? A leading employment law firm suggests we keep an eye on four key cases.

A quick look at the four court actions that have the potential for changing the employment law landscape, courtesy of the Employment Benefits and Labor Practice Group at Blank Rome:

Vance v. Ball State University

You’ll recall that a couple of months ago, the Supreme Court heard oral argument in this case to resolve a split between federal appeals courts regarding the definition of a “supervisor” for purposes of liability under federal anti-discrimination laws.

The case comes down to deciding between two definitions:

• whether the term “supervisor” applies broadly to all employees who have the authority to direct and oversee an alleged victim’s daily work,
• whether the technical definition of “supervisor” is limited to those who have the power to “hire, fire, demote, promote, transfer, or discipline.”

The court’s determination will have a significant impact on employer exposure to Title VII lawsuits, workforce management and anti-harassment training, according to Blank Rome.

Genesis HealthCare v. Symczyk

In this important Fair Labor Standards Act case, the Supreme Court will determine whether an FLSA collective action becomes moot after the named plaintiff receives an offer of judgment that provides full relief.

Translation: If an employer makes an offer that would fully cover the FLSA violation alleged in an active court case, does that offer basically blow the court action out of the water?

In the decision under review, a federal appeals court held that a motion for conditional certification of a collective action “relates back” to the date the complaint was originally filed — and the settlement offer doesn’t stop the original case from proceeding.

But two other federal circuits have held that a full offer of judgment to the complainant does make the court case moot.

The high court’s decision could impact an important tool that employers have relied upon in their efforts to battle the recent deluge of collective wage-and-hour litigation.

Click here to see the last two cases.

Penalty could keep smokers out of health overhaul

WASHINGTON — Millions of smokers could be priced out of health insurance because of tobacco penalties in President Barack Obama's health care law, according to experts who are just now teasing out the potential impact of a little-noted provision in the massive legislation.

The Affordable Care Act — "Obamacare" to its detractors — allows health insurers to charge smokers buying individual policies up to 50 percent higher premiums starting next Jan. 1.

For a 55-year-old smoker, the penalty could reach nearly $4,250 a year. A 60-year-old could wind up paying nearly $5,100 on top of premiums.

Younger smokers could be charged lower penalties under rules proposed last fall by the Obama administration. But older smokers could face a heavy hit on their household budgets at a time in life when smoking-related illnesses tend to emerge.

Workers covered on the job would be able to avoid tobacco penalties by joining smoking cessation programs, because employer plans operate under different rules. But experts say that option is not guaranteed to smokers trying to purchase coverage individually.

Nearly one of every five U.S. adults smokes. That share is higher among lower-income people, who also are more likely to work in jobs that don't come with health insurance and would therefore depend on the new federal health care law. Smoking increases the risk of developing heart disease, lung problems and cancer, contributing to nearly 450,000 deaths a year.

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Tip Tuesday! 8 Natural Ways to Manage Parkinson’s Disease

By Dr. Axe

Parkinson’s Disease is a degenerative disorder of the central nervous system resulting from the death of dopamine-containing cells. It’s believed to be caused by a combination of genetic and environmental factors. Characteristics include tremors, muscle stiffness, poor balance and difficulty walking. Simple tasks like getting dressed in the morning can become a chore. While there is no cure, there are medications available to boost dopamine in the brain and help manage symptoms. Over time though, symptoms will stop responding to traditional drugs. It’s important to take extra measures to slow down the progression. Below are eight of the top ways to manage parkinson’s disease naturally.

Eat Healthy

It’s important to eat a whole food diet that includes fresh fruit, vegetables and organic meats and remove processed foods and grains completely (for more, check out my Healing Foods Diet). Constipation is common among Parkinson’s patients, so be sure to eat plenty of fiber and stay adequately hydrated. Increasing omega-3 intake can help elevate dopamine levels and reduce inflammation.

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Florida business owners wonder what health care law means for them

By Tia Mitchell, Times/Herald Tallahassee Bureau

TALLAHASSEE — As the Legislature decides whether Florida will implement certain provisions of the Affordable Care Act, businesses of all sizes are also grappling with the impacts of the law.

There are new standards for insurance plans offered by employers, requirements that employees buy insurance and penalties for those who don't comply.

It doesn't help that the state has avoided making certain decisions, one business owner told a Senate panel on Monday.

"We need you to study this matter expeditiously and bring us more certainty as an employer," said Kim Williams, president of Marpan Supply Co. in Tallahassee. "What are we going to do?"

The Select Committee on Patient Protection and Affordable Care Act, as well as a similar panel in the House, is studying whether Florida should expand Medicaid and create a health exchange under the law.

Most of the discussion has focused on what the health care law could cost the state financially. This week, legislators are hearing from business leaders about what the law means for them.

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Treasury Issues Rules on Employer Responsibility for Health Insurance

On December 28, the Treasury Department and the Internal Revenue Service (IRS) issued proposed regulations and questions-and-answers on the employer responsibility rules of the health reform law. The proposed regs are summarized here. The agencies also released questions-and-answers on the rules, intended to simplify and summarize the proposed regulation.

Generally, REG-138006-12 provides guidance on which employers must comply with the employer responsibility rules; to which employees they are required to offer affordable qualified health insurance; how to determine whether the coverage is affordable and qualified; how to calculate assessments; and, certain other administrative issues. The proposed reg also incorporates certain safe harbors and other interim rules contained in previously released Notices 2012-58, 2011-36, 2011-73 and 2012-17. These Notices provide guidance on how to determine whether an employee is full-time, and on basing measurements on self-only rather than family coverage.

The proposed regulation provides guidance on:

• How to measure “full-time” in order to determine which employees must be offered affordable qualified (minimum essential coverage, or MEC) health insurance
• How to determine if an employer is a large employer that will be subject to the requirement that it offer MEC
• How to calculate assessments if an employer will be subject to them for failure to offer MEC at all, or for the failure of its health insurance to be MEC and/or affordable
• How to determine if the MEC is affordable
• How to deal with certain administrative issues (such as how and when to pay assessments, comply with reporting requirements, etc.) 

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Tip Tuesday! You can still fight the flu: 3 steps HR can take now

By Dan Wisniewski

Seem like your workplace has turned into a giant Petri dish, spawning the flu virus and spreading it to staffers? There’s still time to take steps to limit the damage.

It’s pretty clear we’re in the worst flu season in at least a decade. The number of states reporting widespread flu activity jumped to 47, up from 41 in early January.

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Measles on the rise: Is your family safe?

By Tanise Edwards, M.D.


Just over a decade ago, we were nearly a measles-free nation. But, this potentially serious disease is back.

In 2011, cases of measles in the United States hit a 15-year high. Outbreaks sickened more than 220 people, according to the Centers for Disease Control and Prevention.

And, it's a comeback that has health officials concerned. They're urging immunization — particularly for children who may be unprotected.

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The 9 questions you need to answer before firing anybody

By Tim Gould

It’s the HR pro’s least favorite duty: Telling somebody they’re fired. And in today’s litigious atmosphere, you need to make sure you’ve looked into all the possibilities that might lead to a legal mess down the road.

There are nine questions companies need to answer before the actual termination discussion takes place.

Here’s a rundown from staffing and management consultant Hunter Lott, who runs the HR website PleaseSueMe.com.

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Surprise! Employees don’t hate performance reviews as much as we thought

By: Tim Gould

No question, performance reviews are a touchy subject. But love ‘em or hate ‘em, new research says current review practices are pretty effective.

In a the recent Cornerstone OnDemand 2013 U.S. Employee Report, almost half (47%) of employees canvassed said their employer’s review process is a fair and accurate representation of their performance.

Another 40% said the feedback they receive helps them to improve their performance and succeed in their jobs.

In other comments, employees said the feedback they receive during the performance review process:

• is not a surprise and is feedback they’ve gotten prior to the formal review — 35%
• gives them a clear understanding of how their job performance impacts their employer’s business results — 33%
• provides them with specific examples of their work to support the feedback they receive — 31%, and
• provides them with tools, resources and/or a development plan to help them improve performance — 25%.

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Tip Tuesday! Posture: 3 great ways to straighten up

By Michael R. Rosnick, M.D., M.P.A.
What if you could instantly look thinner, taller and more confident — without spending a cent?

There is a way — stand up straight!

But, proper posture is about more than keeping up appearances. When you stand, sit or lie down properly, you take pressure off your muscles and ligaments. This means less wear and tear on your spine and joints — and a shot at keeping joint and back pain and injuries at bay.

Strike a healthier pose
Whether you're standing, sitting or going to sleep, consider your body position. See the chart below for tips that you can use every day.

Your core: It has your back!
You might think of a strong midsection as the soul mate of a healthy spine. It offers unwavering support — and is a plus for posture. As part of an overall good exercise routine, be sure to include fitness activities that boost core strength. For example, you might do crunches, Pilates or stability-ball workouts.

Put safety first. Talk with your doctor about what types of activity are right for you. For example, certain exercises may not be advised for people with bone loss or disk problems. 

Back basics
Discover more information and resources at myuhc.com. Click "Health & Wellness." Type "good posture" into the search box.

Click here to view chart.

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‘Fiscal cliff’ averted, but paychecks will shrink

By: Tim Gould

Get ready for some employee questions – and grumbles – following the passage of the legislation that pulled us back from the “fiscal cliff.”

The four provisions in the American Taxpayer Relief Act that will most directly affect your workforce:

1.  No more Payroll Tax holiday

With so much attention being given to the bullet most Americans dodged when it comes to tax hikes, many folks will likely be thrown when their first paycheck of 2013 is smaller than their last one in 2012.

That’s because even though we avoided a major income tax hike, the payroll tax holiday everyone enjoyed in 2011 and 2012 for employee Social Security taxes did expire.

That means the 4.2% rates returns to 6.2% on employee wages (up to the $113,700 taxable wage base).

In 2012, the maximum Social Security tax an employee paid was $4,624.20. In 2013, that amount increases to $7,049.40 – an additional $2,425.20 for your company’s higher wage earners.

This is something you’ll probably want to address, pronto — preferably before employees see those first pay stubs.

2.  Increase in supplemental wage withholding rate

Another task for Payroll in the new law. But this one will only impact your highest wage earners and specifically those with non-traditional pay arrangements.

For supplemental wage payments over $1 million made in a year after Dec. 31, 2012, the withholding rate increases from 35% to 39.6%.

Click here to view that last two bullet points.

Because you care: Avoiding caregiver burnout

By Arleen Fitzgerald, L.I.C.S.W.

For many people, being a family caregiver is a beautiful gift of kindness, love and loyalty.

In fact, nearly 40 million Americans look after family members who are older than 65. Many others care for loved ones — of all ages — who are ill or have disabilities.

But, even though it may be a labor of love, that doesn't mean it's easy.

It's hard work that can be exhausting and overwhelming at times. Burnout is a very real possibility. And, it can put the well-being of both the caregiver and the cared-for at risk.

Caregivers need care, too
Here are seven ways to help prevent burnout — and strike a better balance:

To view tips, click here.

3 trends HR can expect in 2013

What changes will the workplace undergo this coming year?

Here are three major trends you can expect to see in the workplace in 2013:

1. Flextime and telecommuting will continue to grow. Flextime and telecommuting have been found to have positive effects on everything from retention to employee health, so it’s no surprise that both will likely continue to grow in popularity in 2013. After all, more often than not, it’s a win-win solution to enact those policies — workers save money on gas and tolls and have better control over their personal lives, while employers look at the arrangements as morale boosters as well as savings opportunities.
2. Online hiring will increase in popularity as well. A 2012 study found that 63% of HR pros “somewhat often” or “very often” conduct interviews via video, and that trend shows no sign of slowing down in the coming 12 months. That makes sense:  5% of small businesses said that hiring online gives them a competitive advantage, according to the recent Elance Global Business Survey.
3. “Fractional employment” will help small businesses compete. With the popularity of on-demand businesses like Zipcar increasing among consumers, small businesses are also beginning to use talented temp or freelance workers on an as-needed basis more and more. That’s good news for small companies — hiring on-demand allows them to compete with bigger companies.

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Tip Tuesday! Quit smoking – without gaining weight

By Michael W. Rosen, M.D., and Melanie Polk, M.M.Sc., R.D., F.A.D.A.
Your quit date is on the calendar. And, you're ready to kick cigarettes for good. But, can you snuff out this habit without piling on the pounds?

If that's a concern for you, here's something you should know: Not everyone who stops smoking gains weight.

Also, let's say you're at a healthy weight now — and you do put on a few pounds. Remind yourself of this: That's still better — and safer — than continuing to smoke.

4 weight-wise ways to quit
As you take this great step for your health, try these stay-slim strategies. They can help keep pounds — and cigarette cravings — in check. And, if you're trying to kick a smokeless tobacco habit, they're useful tips for that, too.

Click here to view the different ways.

Intermittent FMLA leave: 4 steps to stay on the right side of the law

By Dan Wisniewski

Saying that intermittent FMLA leave is a tricky area for HR pros is an understatement.

For instance, what do you do when a doctor certifies that a staff member will need intermittent FMLA leave but doesn’t specify the duration or frequency of the worker’s illness?

Or what if you suspect FMLA abuse? Can you ask the employee to get recertified – and if so, how soon after the he she got the initial certification?

Here are four steps to make sure you stay on the right side of the law when approving, denying and overseeing intermittent leave, courtesy of Mark Toth on The ManpowerGroup Employment Blawg. 

Click here to view the steps.

THE IRS AND THE TREASURY DEPARTMENT HAVE ISSUED FINAL REGULATIONS ON THE FEE ON CERTAIN ISSUERS AND PLAN SPONSORS

The IRS and Department of Treasury have issued final regulations on the fee imposed by the Patient Protection and Affordable Care Act on issuers of specified health insurance policies and plan sponsors of applicable self-insured health plans to fund the Patient-Centered Outcomes Research Trust Fund.

The final regulations provide guidance on the policies and plans that are subject to the fee.

The final regulations also provide guidance on the requirements for
calculating, reporting, and paying the fee.

Issuers and plan sponsors must file Form 720, Quarterly Federal Excise Tax Return, once a year on July 31 of the calendar year following the last day of the policy year or plan year to report and pay the fee.

The fee applies for policy and plan years ending on or after October 1,
2012, and before October 1, 2019.

IRS proposed regulations issues on Additional Medicare Tax

A new Additional Medicare Tax goes into effect starting in 2013. The 0.9 percent Additional Medicare Tax applies to an individual's wages, Railroad Retirement Tax Act compensation and self-employment income that exceeds a threshold amount based on the individual's filing status.

The threshold amounts are:

* $250,000 for married taxpayers who file jointly

* $125,000 for married taxpayers who file separately

* $200,000 for all other taxpayers

An employer is responsible for withholding the Additional Medicare Tax from wages or compensation it pays to an employee in excess of $200,000 in a calendar year. 

Tip Tuesday! 6 Natural Remedies For Bone And Joint Pain

BY DR. AXE

I’ve written previously about sale alternatives to aspirin, but today I want to focus on some great natural remedies specifically for bone and joint pain. While it can feel like the pain is originating from the bones, it is most likely coming from the joints and surrounding soft tissues.

There are several potential causes for the pain: osteoporosis, repetitive movements, injuries, inactivity or poor posture. Whatever the cause, sharp pain with each move can make something as simple as carrying groceries a daunting task. Some resort to medication to cope with the aching and throbbing, but there are some really good natural remedies to consider trying. Below are six of my favorite.  

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