Tip Tuesday! FMLA violation? Worker said he was sick, walked off the job and was fired

by Christian Schappel

Here’s a scenario any manager could learn a valuable FMLA lesson from. 

An employee gets into an argument with his supervisor. A while later, still a little shaken up from the argument, the man begins to experience chest pains. He then tells a co-worker he thinks he may be having a heart attack.

The employee then tells the co-worker to tell their supervisor that he’s leaving for the day as a result of his symptoms, which the co-worker does.

But it was a well-known company practice that employees had to inform a supervisor directly before leaving work.

So the company fired the man that afternoon. The employee then sued, claiming FMLA interference (shortly after his termination had been processed, he submitted paperwork that he was suffering from a serious health condition).

Was this interference?

That’s how it happened … for real

This is the story of Randy Greene, a truck driver, and his employer YRC Inc., a freight company.

Greene thought he might have been having a heart attack, so he left work without completing his route for the day.

YRC essentially took this as a “voluntary quit” and processed his termination.

Click here for entire article. 

Healthcare Reform 4 key areas to check to make sure your health plan is in compliance

by Jared Bilski

The sheer complexity of changing federal regs as well as the impact of recent landmark court rulings on benefits plans make assessing health-plan compliance a critical task that HR pros need to put at the top of their to-do list.  

In fact, ERISA attorney Daniel N. Kuperstein is warning employers everywhere that most health plans aren’t fully compliant with the host of regs they’re subject to.

Almighty plan document

A proper assessment of your health plan starts with the plan document, Kuperstein says. Simply put: If your plan doc doesn’t gibe with how your benefits are actually provided to employees, you’re out of compliance.

Well-meaning employers will often get themselves into trouble by offering benefits and perks that aren’t detailed in the company’s plan document.

On top of an up-to-date plan document, employers have to make sure none of the language in their summary plan descriptions, benefits-related policies and benefits communications contradicts what’s written in the official plan document.

Some specific documents employers will want to review include: Employee notices, COBRA offerings and documents, FMLA info and health plan non-discrimination testing.

For a sample health plan compliance assessment checklist, visit. In addition, here are some major changes in the benefits world to keep in mind when it comes to compliance:

Click here for entire article.

Careful — new OT rule could create 2 more landmines for employers

by Christian Schappel

The DOL’s new overtime rule will likely cause lots of currently exempt employees to begrudgingly begin punching a time clock. This may lead to two unintended consequences. 

Timesheet fraud

For starters, the changes to the FLSA’s overtime regulations are likely to exacerbate an already troubling issue for employers: timesheet fraud.
Of course, you want to believe that all employees will be honest about their “hours worked” when it comes to filling out their timesheets. But timesheet fraud is a real problem that can take a huge chunk out of employers’ bottom lines — especially for those in industries and jobs where it’s easy for workers to cheat.

Plus, the DOL’s new overtime rule will likely see a lot of formerly exempt employees punching a timecard for the first time in their careers. And resentment for having to do this may lead some staff to take a few liberties with their timekeeping.

What to watch for

The best way to prevent time sheet fraud – a.k.a., wage theft – is to be aware of how employees can engage in fraudulent timekeeping.

Click here for entire article. 

Flexible work time makes employees less stressed and more productive

by Guest Author

Does flexible work time make actually employees more productive and is it feasible for your company? Guest author Pierce Ivory explores just how effective flexible work time can be for employers of all stripes.

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Employees are an essential part of every business. They will determine whether or not a company sinks or swims. If you have hard-working, productive, employees, then you’ll see a lot of success. Your business will work like an efficient machine, with all the cogs working in harmony. On the other hand, unproductive employees can be damaging to your business. They can slow your business down and mean you struggle to make any money.

It’s vitally important that a business knows how to manage their employees properly. This means ensuring they stay productive while caring for their health too. If your staff are stressed or in poor health, then it’s bad for them and your business. No one can work to their full potential when stressed; they become unproductive.

So, what can you do to make employees more productive and stress-free? Well, there are many ideas and theories out there surrounding this topic. However, I’m going to focus on something that’s become a recent phenomenon. The concept of flexible work time has been floating around the business world for years. Allowing your employees to be flexible when they work, as opposed to having a strict working schedule. There have been studies that suggest flexible working makes employees stress free and more productive. But, how? How can flexible work time do this? Well, I did some research and found out how these things are connected.

Click here for entire article. 

Tip Tuesday! When it comes to employee engagement, ‘one-size-fits-all’ isn’t working

by Tim Gould

There’s bad news for organizations working hard to improve employee engagement: Overall, it’s still declining.  

With so much time and energy being focused on this issue, what is still going wrong? In order to get some answers, Quantum Workplace — a company that offers an employee feedback platform — conducted an in-depth survey to see the macro and micro trends in  employee engagement.

Their infographic below delves into how different types of employees’ engagement are driven by different factors.

The takeaway? It’s time to stop approaching engagement with “one-size-fits-all” strategies.

Some highlights include:

• In 2013, 68% of employees were engaged. That fell to 65.3% in 2015.
• Having leaders who are committed to making the organization a great place to work is the number one factor driving engagement.
• For employees between the ages of 26 and 35, having a job that allows them to use their strengths became more important. That factor jumped up 5 ranking spots as an influencer of engagement.
• While 72% of men and 67.9% of women are engaged, just 40.9% of employees of another gender identity are.

Click here for entire article. 

EEOC issues final wellness rule: What’s allowed, what isn’t

by Christian Schappel

Finally, employers have the info they’ve been seeking on how to design their wellness programs so they don’t violate the ADA — or other federal laws. 

The EEOC has been promising for a while now to clear the air when it comes to what kinds of wellness incentives are legal — and when non-participation penalties become so steep as to render a wellness program “involuntary” and, thus, illegal under the ADA.

Now, more than a year after the EEOC issued a proposed rule on the subject, the final rule has dropped. (Spoiler alert: It closely mirrors the proposal.)

The problem

Here’s the problem the final rule was meant to address: When the ADA was passed in 1990, it said it was permissible for employers to conduct medial inquiries and examinations of employees as part of “voluntary” “health programs” (a.k.a., wellness programs). The problem was those two terms were never clearly defined.

Then along came HIPAA and the ACA, which said employers could offer incentives to encourage employees to participate in wellness programs — so that’s what employers did.

Fast forward to 2014. With healthcare costs skyrocketing, some employers got pretty aggressive in their wellness plans, tying bigger incentives (i.e., penalties) to non-participation.

Then the EEOC got the itch to start going after employer wellness programs it felt punished employees too harshly for not participating in wellness initiatives.

Click here for entire article. 

DOL issues final OT rule: It’s more good news than bad

by Christian Schappel

Is the DOL’s new overtime rule going to be a burden for businesses? Yes. There’s no denying that. But compared to the original proposal, there are some things to be happy about. 

To be clear, we’re not saying employers should be excited for the rule. Rather, if you were expecting the final rule to be as daunting to comply with — or worse — than the proposed rule, there are some things to be happy about.

Specially, the good news is:

• The salary threshold was lowered. The proposed rule said the annual salary an employee had to be paid to be considered exempt under the FLSA would be $970 per week or $50,440 per year. That number has now been dropped to $913 per week or $47,476 per year.
• The threshold won’t increase every year. In its proposal, the DOL suggested tying the threshold to an automatic escalator, which likely would’ve resulted in the threshold climbing annually. Instead, the final rule says the threshold will increase every three years.
• Nondiscretionary bonuses count toward the threshold. Other than for highly compensated individuals, nondiscretionary bonuses haven’t counted toward an individual’s salary and, therefore, couldn’t help employers push workers over the exemption threshold. But the final rule emends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10% of the new $47,476 salary level.

Click here for entire article. 

Is your health plan out of compliance? 4 areas to check ASAP

by Jared Bilski

The sheer complexity of changing federal regs as well as the impact of recent landmark court rulings on benefits plans make assessing health-plan compliance a critical task that HR pros need to put at the top of their to-do list.

In fact, ERISA attorney Daniel N. Kuperstein is warning employers everywhere that most health plans aren’t fully compliant with the host of regs they’re subject to.

Almighty plan document

A proper assessment of your health plan starts with the plan document, Kuperstein says. Simply put: If your plan doc doesn’t gibe with how your benefits are actually provided to employees, you’re out of compliance.

Well-meaning employers will often get themselves into trouble by offering benefits and perks that aren’t detailed in the company’s plan document.

On top of an up-to-date plan document, employers have to make sure none of the language in their summary plan descriptions, benefits-related policies and benefits communications contradicts what’s written in the official plan document.

Some specific documents employers will want to review include: Employee notices, COBRA offerings and documents, FMLA info and health plan non-discrimination testing.

For a sample health plan compliance assessment checklist, visit. In addition, here are some major changes in the benefits world to keep in mind when it comes to compliance:

1. The ever-changing ACA regs

In this year alone, the feds clarified and changed several key aspects related to health reform reporting (e.g., COBRA coverage). Not being up to speed on even minor changes to the reporting rules can lead to costly mistakes (a $250 per return penalty up to a $3 million max).

Click here for entire article.

Tip Tuesday! 3 topics your 401(k) investment committee probably needs to revisit

by Tim Gould

Is your 401(k) investment committee doing everything it should? With the feds starting to take a more active role overseeing companies’ retirement plans, that’s a question that needs to be examined on a regular basis.  

As employers are well aware, the DOL has said a few execs acting as a plan sponsor isn’t enough to constitute an “independent review” of the plan and satisfy a plan sponsor’s fiduciary responsibilities.

Committees should be made up of a broad sample of the company. Example: A few senior execs (CFO or vice president), some department heads and HR or benefits reps.

The big 3

Here’s what a committee should be tackling on a regular basis, according to Mercer senior defined contribution consultant Bill McClain.

1. Government regs. In recent years, the feds have taken a strong interest in employers’ retirement plans. So committees must be able to understand exactly how these complex regs apply to their situations.

Because this often requires expert understanding, many committees go to a plan advisor for a simple breakdown of confusing reg issues.

Another best practice that helps with this topic: Looking at actual lawsuits and what the companies being sued could’ve done differently.

Click here for entire article.

6 add-ons any onboarding program would benefit from

by Christian Schappel

Finding talent — like really great talent — is hard. Great employees don’t come around every day. So when they do, are you 100% sure your onboarding program is making a great first impression with them? If not, you’re in trouble. 

Roughly one-third (31%) of the U.S. workforce has quit a job after less than six months, according to recent research.

One of the main culprits? Poor onboarding. Some employees were just never able to settle in — and it’s not always their fault.

Onboardia, an onboarding solutions provider, suggests some organizations are setting themselves up to fail by implementing a sub-par onboarding program — or having no such program at all (32% of surveyed employers said they have no formal onboarding program).

Some other interesting data compiled by Onboardia:

• 91% of managers said they believe their organization does not handle onboarding well
• 81% of HR administrators said the same, and
• 75% of employers admitted that too.

Solutions

So how can employers fix things? Onboardia created an inforgraphic (see below) with some helpful suggestions.

It offered up six says employers can improve how they bring new talent on board to spark comfort, loyalty and job satisfaction:

1. Make the process paperless (80%) of HR pros say the majority of new hire paperwork is completed in person (Note: By making it paperless employers can not only make filling it out easier, but also send it to employees prior to their first day — and get it out of the way early).

Click here for entire article. 

Finally: EEOC offers a wider perspective on what’s required in ADA leave

by Christian Schappel

There are several things employers want to pay close attention to in the EEOC’s latest document covering the ADA. 

Ever since the EEOC started suing employers for not providing disabled employees with leave as a reasonable accommodation under the ADA, employers have been waiting for guidance on the issue.

Finally, the EEOC has delivered … sort of.

While it stopped short of issuing “official guidance,” it did just publish a resource document entitled, “Employer-Provided Leave and the Americans with Disabilities Act.”

It’s not considered official guidance because it wasn’t voted on by the entire commission. But it does provide a lot of the info employers have been seeking on when and how leave under the ADA must be considered/granted.

Here are the topics the document covers and what employers need to know from each of those sections:

Equal access to leave under your leave policies

• If an employer receives a request for leave for reasons related to a disability, and the leave falls within the employer’s existing leave policy, it should treat the employee requesting leave the same as an employee who requests leave for reasons unrelated to a disability. (Example: If you don’t require non-disabled employees to provide a doctor’s note to support a leave request, you can’t require disabled employees to provide a doctor’s note.)
• Employers are entitled to have policies that require all employees to provide a doctor’s note or other documentation to substantiate the need for leave. But the requirement must be applied to all individuals equally.

Click here for entire article. 

DOL answers more questions on ACA: 5 highlights

by Jared Bilski

New Obamacare guidance from the agencies responsible for implementing the ACA includes a lot of important info on health plans and cost-sharing. 

The feds’ (DOL, HHS and IRS) 31st FAQ on healthcare reform answers a lot of important questions for employers about the ACA.

But it also delves into other federal laws such as the Mental Health Parity Act and the Women’s Health and Cancer Rights Act (WHCRA).

Some of the highlights employers should know from the 12-question FAQ:

Preventive services

The first few questions in the FAQ deal with the preparation for a common preventive procedure: a colonoscopy.

According to the feds, the preparation is an integral part of the actual procedure and, generally, must be covered without any cost-sharing. Specifically, the feds mentioned bowel preparation medications given before the colonoscopy.

However, when utilizing reasonable medical management techniques, plans can create a standard exception form – which can be modeled after the Medicare Part D Coverage Determination Request Form – so providers can prescribe specific services or FDA-approved items.

Click here for entire article. 

Tip Tuesday! 3 awkward conversations DOL’s new overtime rule will spark

by Christian Schappel

Are you ready for the three most difficult conversations you’ve had in a while? 

The DOL’s changes to the FLSA white collar overtime exemption regulations aren’t just going to be a financial headache for employers; they’re also going to be a managerial dilemma.

If the final rule resembles anything close to the DOL’s proposal — which would crank up the minimum salary threshold for all exempt employees to $50K (or at least $47K) — large chunks of some companies’ workforces are about to go from exempt to non-exempt.

Financial implications aside, that creates a huge management problem: The change in classification could feel like a demotion to employees.

They’ll blame the DOL, right?

If you think employees will curse the Obama Administration for what could essentially be an overnight change in their work arrangements/classifications, you’re in for disappointment.

Odds are the average worker’s going to blame you, their employer. After all, not everyone keeps up to date with what the feds are doing. So, on its face, the shift from exempt to non-exempt status may come off looking like something your company did for its own benefit — unless you’re willing to set the record straight right now.

Click here for entire article. 

Why employees are failing to use FSAs as effectively as they could be?

by Jared Bilski

Whether you offer the grace period or the rollover method, employees have to do some planning to use their FSA funds effectively. Otherwise, they could easily do what a lot of FSA account holders are doing nowadays … 

… forfeiting some hard-earned money.

Research shows most FSA account holders aren’t aware of the many ways in which they can use their funds.

In fact, just 50% of FSA account holders were able to pass a basic proficiency quiz, according to research by Alegeus Technologies. (Note: The problem’s even worse for HSA account holders.)

What they need to know

To help employees get the most out of their FSAs, here’s some info employers can share with them:

1. The latest eligibility list. Many staffers fail to take advantage of FSA tax benefits because they assume products aren’t eligible.

But from smartphone-enabled apps to lip balm, there are more than 4,000 FSA-eligible products available. Direct staff to most up-to-date FSA eligibility list, here.


2. Allowable changes. Generally, employees must commit to their FSA deductions at the start of the plan year. However, there are a number of events (marriage, divorce, birth, employment status change) where mid-year changes are allowed. Be sure employees are aware of these events.

Click here for entire article. 

Big news on DOL’s new overtime salary threshold

by Christian Schappel

When it comes to complying with the DOL’s coming changes to the white collar overtime exemption regulations, employers will take any relief they can get. As a result, employers will likely embrace this suspected change to the regs. 

It appears the agency is backing off its original proposal to raise the salary threshold to $50,440 to qualify as exempt … at least a little.

The new threshold figure being kicked around by lawmakers is $47,000, according to reports by POLITICO and CNNMoney — with POLITICO’s labor and employment reporters Brian Mahoney and Marianne Levine citing “sources familiar with the Labor Department’s deliberations.”

Given the significant amount of criticizm heaped on the DOL’s proposed changes to the overtime exemption regs by employers and business groups, the decrease isn’t likely to come as a shock to many employers — although, it’s not as low as many would’ve liked to have seen it go.

Many critics felt the $50,440 proposed threshold was too big of a jump from the current $23,660 figure and that it failed to account for the specific financial environments of different industries and regions.

Example: Former DOL administrator-turned-attorney Tammy McCutchen told the House Subcommittee on Workforce Protections that a $50K threshold would have a disproportionate impact on states with a lower cost of living. In addition, she said the proposed salary threshold would far exceed the threshold established in high-cost-of-living states like California ($37,440) and New York ($34,124).

So it appears the DOL is willing to cave, at least a little.

Why $47,000?

Click here for entire article. 

Top 10 mistakes managers make when giving feedback

by Christian Schappel

Orchestrating a great feedback session is as much about what you shouldn’t do as what you should. 
According to Suzanne Lucas, the Evil HR Lady (EvilHRLady.org), giving feedback improperly is as bad as not giving feedback at all.
Adding to the equation is the fact that many companies, during manager training, tend to focus entirely on what should be done and said in employee feedback sessions — rather than also training mangers on what costly actions and phrases should be avoided at the same time.
So Lucas shared in her always-excellent Inc. Magazine column 10 mistakes that should never be made when providing employee feedback.
Pass these abbreviated versions along to your managers (and go to Lucas’ column for a full breakdown):

• No. 10: Forgetting to say what you want. Don’t just tell employees what they screwed up. Tell them what you want them to do going forward.
• No. 9: Failing to document. Create a paper trail. It helps when you have to justify a decision. Document not only what the employee did wrong, but also what goals you set for them in the future.

Click here for entire article. 

Tip Tuesday! Here’s what trashing resumes, applications can cost you

by Christian Schappel

A recent settlement of an EEOC lawsuit is a powerful reminder of just how important it is to retain job seekers’ application materials — and what it can cost if you fail to. 

Last fall, HR Morning reported that Coca-Cola Bottling Company of Mobile, an Alabama-based subsidiary of Coca-Cola Bottling Co. Consolidated, was being sued by the EEOC.

The agency claimed that soda maker and bottler twice violated federal law when it refused to hire Martina Owes.

Specifically, the EEOC accused Coca-Cola of:

• Sex discrimination. The EEOC claimed Coke violated the Civil Rights Act when it refused to hire Owes. It said the company hired two less-qualified men to fill vacant warehouse positions over Owes, despite the fact that she had all of the warehouse and forklift experience required for the positions.
• Recordkeeping violations. The agency also claimed Coke violated federal recordkeeping requirements by not preserving all of the application materials related to those positions.

The agency sued only after attempts to reach a settlement through its conciliation process failed.

But, apparently, Coke had a change of heart while preparing its defense strategy. The EEOC just announced that it has reached a settlement with the Mobile bottling plant.

What’s it going to cost?

Coca-Cola has agreed to pay Owes $35,000 to settle all the charges against it.

The terms of the settlement also dictate that Coke:

• cease from future discrimination

Click here for entire article.