ACA ruling: You can now get sued for reducing employees’ hours

by Christian Schappel

This U.S. district court ruling is a real game-changer for employers — and not in a good way. Turns out, you CAN now be sued for simply reducing an employee’s hours. 

Here’s the deal: If an employee can show that your intent in reducing his or her hours was to deny the person access to some benefit or right he or she would’ve otherwise been entitled to, you can be sued.

That’s according to a new ruling by the U.S. District Court for the Southern District of New York.

This ruling has major ACA implications.

Example: If you reduce employees’ hours below 30 per week to avoid having to offer them health insurance per the ACA — and employees provide any evidence that your intention behind the hour reduction was to avoid having to offer insurance — bang … lawsuit.

The court just ruled Dave & Buster’s employees can sue the restaurant chain for that very reason.

Protected by ERISA

The employees sued under ERISA Section 510.

Yes, ERISA was written primarily to apply to retirement plans. But Section 510 can be applied to a number of benefit plans as well — including healthcare coverage.

Click here for entire article. 

When are the new OT regs actually coming?

by Jared Bilski

If you’re confused about when the new DOL overtime regs are actually going to be released, it’s understandable. The agency seems to be sending some mixed messages about this game-changing reg change, and depending on which projection is accurate, HR pros may have a lot less time to prepare.  

The most eye-opening estimate recently came from DOL Secretary Thomas Perez. In an interview withBloomberg BNA, Perez said the DOL is “confident we’ll get a final rule out by spring 2016.”

That’s a significant change from the July release date the DOL said it was shooting for when it released its fall 2015 regulatory agenda.

So why in the world would Perez try to move up a date that’s not too far away to begin with? Four words: The Congressional Review Act.

Rule disapproval tool

This little-known tool could allow Congress to disapprove “major” final rules that are enacted by agencies such as the DOL, according to the Congressional Research Service, a Library of Congress branch. And the new OT regs certainly fit the definition of “major,” which is defined as any rule that would have an annual effect on the economy of $100 million or more.

The act gives Congress 60 legislative session days to pass a joint resolution that would invalidate any major rule. If the rule is submitted to Congress with fewer than 60 session days remaining on the legislative calendar, then the next Congress will have a similar 60-day period to consider the rule.

Click here for the entire article. 

Oops: This FMLA policy was missing something kind of important

by Christian Schappel

It’s time to double-check that your FMLA policy and notices aren’t missing this critical, but apparently easy to overlook, piece of info. 

What is it? The 12-month period your company uses to calculate an employee’s remaining FMLA eligibility.

In other words, are you clearly articulating the date ranges you’ll use to add up how much of employees’ 60-day allotment they’ve used?

The Illinois Department of Corrections (IDC) didn’t, and the legal pickle it’s in can teach a lot of employers what happens when this piece of vital info is missing from your written FMLA policy and/or other documentation.

The IDC was sued by Michael Caggiano, a former corrections residence counselor at IDC’s Westside Adult Transition Center, after IDC terminated Caggiano for accumulating too many unexcused absences.

Caggiano had taken off to care for his ill mother and had requested that his absences count as FMLA leave.

Click here for entire article. 

Tip Tuesday! Reporting you to the feds? Yup, there’s an app for that now

by Christian Schappel

It stands to reason that the easier it is to report wage or civil rights violations, the more people there would be doing it, right? Well, that’s exactly the kind of thinking that’s driving the development of a new app employers aren’t going to like. 

The app doesn’t have a name yet, but it’s being developed by SeeClickFix, a tech company that has already built an app that allows citizens to report non-emergency issues — like potholes and power outages — to the appropriate government officials. So far the app has helped individuals file nearly 2.5 million complaints.

SeeClickFix is planning to use that same technology to help employees report violations of workplace law to the appropriate government agencies, Buzzfeed is reporting.

Early indications are the app’s primary purpose may be reporting safety violations to the Occupational Safety and Health Administration (OSHA), but it’ll likely also be used for reporting other workplace violations — like wage-and-hour abuse.

Click here for entire article. 

What it can look like when you don’t dish out discipline consistently

by Christian Schappel

You know the importance of disciplining employees consistently. But do all of your managers? Here’s a powerful reminder for managers of how it can look to a jury when their discipline isn’t consistent. 

Maureen McPadden was a pharmacist at a Seabrook, NH, Walmart for 13 years.

She was fired after misplacing a key to the store’s pharmacy.

McPadden then filed a discrimination lawsuit against Walmart claiming her gender played a role in her termination.

Her reasoning: A male employee had lost his key to the pharmacy, and he didn’t receive the same punishment, according to a report by Reuters.

That little detail left the door open for her lawsuit to be heard by a jury.

Click here for entire article. 

EEOC’s new retaliation guidance should concern you – and here’s why

by Christian Schappel

It’s about to get easier for employees to cry “retaliation!” 

For the first time since 1998, the EEOC has issued enforcement guidance on what it considers workplace retaliation.

In a 76-page document entitled, “Enforcement Guidance on Retaliation and Related Issues,” the agency outlines the standards it plans to use to prove retaliation under civil rights and anti-discrimination laws.

So far, the guidance is just a proposal (the EEOC’s accepting comments on it until Feb. 24). But make no mistake about it, this is a clear indication of how the agency plans to play ball in this area for years to come.

The game plan

The plan in a nutshell: Make it as easy as possible to find retaliatory intent in every complaint the agency receives from employees.

While the guidance doesn’t make wholesale changes to how the EEOC views and seeks out retaliation, employers will want to pay attention to how it’ll make things easier for employees wishing to pursue retaliation charges.

Here are the specifics in the guidance employers must take note of:

What is retaliation?

The EEOC says a valid retaliation claim must consist of three elements:

Click here for entire article. 

A 7-step plan for improving your company’s workplace culture

by Guest Author

Workplace culture can be similar to the weather — everybody talks about it, but who actually does anything to change it? Guest poster Sandeep Kumar offers seven steps employers can take to improve their day-to-day working environments.  
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Most of us spend too much time at work. When you account for the commuting to and from the office; the time spent at night and on weekends preparing reports, presentations, and other work-related projects; and even the time we spend thinking and worrying about work, it’s fair to say that we spend most of our time working.

In today’s competitive business environment, it’s almost a requirement that we give too much of our lives to our work. Yet given this type of commitment, it’s easy to become burned out. And when that happens, spending so much time at work can be discouraging, disappointing and depressing.

Successful organizations look for ways to constantly improve workplace culture, finding new opportunities for motivating people to want to come to work, want to give more, and want to strive for the overall success of the organization.

Here are seven fast, easy and mostly free ways you can make your business a more enjoyable, rewarding, and fun place for your employees to go to work every day.

Click here for entire article. 

Tip Tuesday! Is DOL’s new overtime rule coming sooner than expected?

by Christian Schappel

The buzz out of Capitol Hill is telling employers they’ve got a lot less time to prep for the DOL’s new overtime exemption final rule. 

Just a couple of months ago, the DOL released its fall 2015 regulatory agenda, which stated the agency was targeting a July 2016 release date for the final changes to the rule. But now, that timeline appears to have sped up.

In a new interview with Bloomberg BNA, DOL Secretary Thomas Perez said his agency is “confident we’ll get a final rule out by spring 2016.”

Why the sudden rush?

The Congressional Research Service, a branch of the Library of Congress, may have the answer.

It just released a telling report entitled, “Agency Final Rules Submitted After May 16, 2016, May Be Subject to Disapproval in 2017 Under the Congressional Review Act.”

It details a little-known mechanism by which the next Congress and president may be able to invalidate the DOL’s changes to the FLSA exemption rule, if they don’t arrive soon.

Meet the Congressional Review Act

The Congressional Review Act allows Congress to disapprove “major” final rules promulgated by federal agencies — like the DOL.

A major rule is defined as one that would have an annual effect on the economy of $100 million or more. The changes to the FLSA exemption rules would qualify as major.

Click here for entire article. 

Employees leaving jobs at the highest rate in nine years — here’s why

by Tim Gould

Are you starting to worry about an increase in employees leaving your organization for greener pastures? A report just released by the DOL might heighten your concern.  

The number of American workers voluntarily quitting their jobs hit a nine-year high in December, according to the DOL’s monthly Job Openings and Labor Turnover Survey (JOLTS).

What’s more, job openings rose by 261,000 to a seasonally adjusted 5.61 million in December, the DOL said. That’s the second highest reading since the agency started to chart those numbers in 2001.

Certainly, increased job openings is a good sign for the overall economy. But that quit rate rise should raise some eyebrows. Here’s what the JOLT report says:

There were 3.1 million quits in December, up from November. The number of quits is now higher than in December 2007 (2.8 million), the first month of the recession. The quits rate was 2.1 percent in December 2015. The number of quits rose for total private and government over the month.
Quits rose in state and local government (+20,000) but fell in nondurable goods manufacturing (-25,000). Quits increased in the South region over the month.
The number of quits (not seasonally adjusted) increased over the 12 months ending in December for total nonfarm, total private, and government. Quits increased over the year in several industries with the largest changes occurring in professional and business services (+102,000), accommodation and food services (+68,000), and retail trade (+58,000). In the regions, quits rose in the South and Midwest.

The reasons they’re leaving

And why are they quitting? Somewhat surprisingly, it’s not compensation.

Click here for entire article.

How 6 words turned an age bias lawsuit into a 6-figure retaliation payout

by Christian Schappel

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A western PA-based employer probably regrets that one of its managers uttered just six words to a shift supervisor. 

The manager approached Rudolph Karlo, who’d been brought in through a subcontractor, and said Karlo would be considered for a full-time position if he “made the whole thing go away.”

The “thing” the manager was referring to was an age discrimination lawsuit Karlo filed against the employer, Pittsburgh Glass Works.

Laid off after change in ownership

Prior to the manager’s comment, Karlo was an engineering specialist and production line supervisor for the company until March of 2009.

It was at that time, which was shortly after a reshuffling of company ownership, Karlo and about 100 other workers were terminated as part of a company-wide workforce reduction, according to a report by the Pittsburgh Post-Gazette.

Karlo and six other men in their 50s reacted by filing an age discrimination lawsuit. The suit claimed Pittsburgh Glass Works was populating production facilities with younger workers at the expense of older workers.

Then, in the fall of 2009, Karlo was rehired through a subcontractor to work at one of the company’s plants in East Deer, PA, as a shift maintenance supervisor.

Click here for entire article.

Do Obama’s new ‘Cadillac Tax’ changes go far enough?

by Jared Bilski

Consistent criticism about the ACA’s “Cadillac Tax” and its corresponding calculation method has led the Obama administration to do something that was unthinkable just months ago: Propose major changes to the controversial health reform provision.

Part of the administration’s budget proposal for FY 2017 includes a tweak to the current threshold for the Cadillac tax.

Prevents ‘unintended burdens’

The crux of the changes would address the inherent unfairness of having a single excise tax threshold that applies to plans when there is such a great contrast in healthcare costs throughout different geographic locations.

On the New England Journal of Medicine website, Jason Furman, chairman of the administration’s Council of Economic Advisers, and Matt Fiedler, the council’s chief economist, detailed how, under the proposed changes, the tax would be adjusted based on the cost of the average gold plan available on the state exchanges by saying:

The most significant provision specifies that in any state where the average premium for “gold” coverage on the state’s individual health insurance marketplace would exceed the Cadillac-tax threshold under current law, the threshold would instead be set at the level of that average gold premium. This policy prevents the tax from creating unintended burdens for firms located in areas where health care is particularly expensive, while ensuring that the policy remains targeted at overly generous plans over the long term if health costs rise faster than the tax thresholds (which will rise with the overall Consumer Price Index).

Click here for entire article.  

Tip Tuesday! What’s the real ROI on your benefits programs? How to find out

by Guest Author

Given the ever-increasing costs of employee benefits programs — and the need to maintain them in order to attract the best talent — it only makes sense to know exactly what you’re getting for your benefits buck. Guest poster Brenden Mielke explains how analytics can help.  
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As big data continues to drive business decisions, professionals in every vertical are scrambling to make sense of the numbers to determine how time and resources should be spent more efficiently.

According to PwC’s 2012 Annual Global CEO Survey, more than 80% of US CEOs said they needed critical talent-related insights to make business decisions. When surveyed this year, however, only 46% said their companies used data analytics to indicate how effectively skills are being deployed.

While advances are being made in the technology needed to interpret big data, the realm of benefits and reward analytics remains primarily unexplored – until now. It’s a massive opportunity to not only maximize efficiency in corporate benefits spending, but to use the insights as a basis of creating a more engaging employee facing benefits platform.

A more rewarding benefits package traditionally translates into increased employee engagement and satisfaction, which in turn drives up business productivity and client satisfaction.

The problem – despite the goldmine of talent information most employers sit on – lies in that businesses either lack the foresight to see the long-term potential benefits, or they don’t have the proper technology needed to break down data for decision making. This is surprising, considering the investments made in benefits packages make up a significant percentage of talent-related spending.

Click here for entire article. 

Study: Additional time off resulted in worker performance gains in 3 areas

by Christian Schappel

Sure, you know there are personal benefits to getting rest and relaxation — like less stress and fatigue. Now here’s some compelling proof there are also measurable business benefits to getting your employees to take some R&R time. 

It comes by way of Stay Metrics and the trucking industry. The business management consultancy that serves the industry collected data on 682 drivers employed by one of its clients.

Stay Metrics looked at the time-off requests that were met for those drivers and analyzed down time’s effects on three driver performance metrics:

• bonus rate
• miles drive, and
• total bonus pay.

What did the analysis find? Measurables in all three areas improved when employees time-off requests were honored, reported FleetOwner.

Click here for entire article. 

A list of the Top 20 employee perks you’re probably not offering

by Tim Gould

We’re all aware that generous benefits packages are an effective enticement for potential hires. But are you willing to go as far as these companies to sweeten employee perks?  

Glassdoor, the online jobs board and employee research firm, recently unveiled a list  — compiled from current employees — of the Top 20 benefits offered by companies across the U.S.

Try these babies on for size (and perhaps add one or two to your benefits wish list):

1. Netflix offers one paid year of maternity and paternity leave to new parents. They also allow parents to return part-time or full-time and take time off as needed throughout the year.
2. REI encourages its employees to get outside by offering two paid days off, called “Yay Days,” a year to enjoy their favorite outside activity.
3. Salesforce employees receive six days of paid volunteer time off a year, as well as $1,000 a year to donate to a charity of their choice.
4. Spotify provides six months of paid parental leave, plus one month of flexible work options for parents returning to the office. The company also covers costs for egg freezing and fertility assistance.
5. World Wildlife Fund employees take Friday off every other week, also known as “Panda Fridays” at the nonprofit.
6. Airbnb, the Best Place to Work in 2016, gives its employees an annual stipend of $2,000 to travel and stay in an Airbnb listing anywhere in the world.

Click here for entire article. 

Obama enlists EEOC in the fight against pay discrimination

by Jared Bilski

President Obama has made it clear that equal pay is one of his top priorities, and his latest action should go a long way to advancing that goal. It’s also likely to add a significant amount of administrative work for HR and benefits pros.

  

On the seventh anniversary of the Lilly Ledbetter Act, the Obama administration announced that it is taking some monumental steps to identify potential pay discrimination.

The first: Enlisting the help of the EEOC to procure more detailed payroll data from employers.

The EEOC — in partnership with the DOL — issued a proposal to start collecting pay data from employers with 100 or more employees to help uncover and root out pay discrimination.


And the feds plan to garner that info through a revised version of its Employer Information Report or EEO-1 Report. As most HR pros are well aware, the EEO-1 is a compliance survey — a survey that, with limited exception, is required for all private employers (including federal contractors) with 100 or more employees — where employers report employment data categorized by race/ethnicity, gender and job category.

Click here for entire article, 

Tip Tuesday! Steps to Successful Employee Communication [Video Blog]

Posted by Tom Ceconi

According to management expert and dean of Harvard Business School, Nitin Nohria, communication is the real work of leadership. And that doesn’t apply only to Fortune 500 companies. No matter the size of the organization, effective managers must be strong communicators to inspire and lead their teams. Unfortunately, with day-to-day business demands, communication skills are getting short shrift at too many companies. Today we’re going to give you a communication tune-up—a set of strategies and suggestions that will help keep your communications efforts on point.