by Christian Schappel
Courts have ruled that managers and supervisors can be held personally liable for FLSA violations. And now, in a new twist, courts are saying you can be individually liable for FMLA violations as well. Here’s why and when.
In a nutshell, the FMLA says that an employer can be:
“… any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer …
And employers can be held liable for FMLA violations — even if those “employers” are individuals within a company.
So how do you determine who qualifies as an employer under the law? Courts have recently ruled that the FMLA’s definition of employer closely tracks the definition of employer under the FLSA and, therefore, have reasoned that the standards used to evaluate employers under the FLSA should be applied to FMLA cases as well.
In other words, courts can look at the “economic reality” of a situation to determine an individual’s level of control over an employee — and, thus, that individual’s liability under the FMLA.
Employee claims HR director is liable
Recently, the U.S. Court of Appeals for the Second Circuit used this very line of thinking to determine that Shaynan Garrioch, the director of HR for the Culinary Institute of America (CIA), could potentially be held individually liable for FMLA violations allegedly committed against Cathleen Graziadio, CIA’s payroll administrator.
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by Jared Bilski
HR pros are a group that always likes to be one step ahead of the curve. And the feds just released some key benefits figures that will help you do just that.
The Departments of Health and Human Services (HHS) have released next year’s out-of-pocket maximums for employee health plans.
The out-of-pocket limits for non-grandfathered plans beginning on or after January 1, 2017 are $7,150 for single coverage (up from $6,850 in 2016), and $14,300 for family coverage (up from $13,700).
The out-of-pocket maximums include plans’ annual deductibles as well as any in-network cost-sharing obligations plan participants have after the deductible is met.
What isn’t required to be included with the out-of-pocket maximums: premiums, pre-authorization penalties, and any out-of-pocket expenses that are associated with out-of-network benefits.
Obamacare’s ’embedded’ rule
Another thing firms need to be mindful of with these limits is the “embedded” out-of-pocket maximum rule.
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by Christian Schappel
The ADA’s interactive process has been one of the more vexing aspects of employment law recently.
Not only has the EEOC ramped up its oversight of this complex area, but the regulations surrounding the interactive process don’t paint a black-and-white picture of what exactly employers need to do.
Interactive process: a definition
As you know, the need to initiate the interactive process with an employee occurs when an employer first finds out that the employee is suffering from a disability that may affect the person’s ability to perform his or her job.
In a nutshell, the process requires the employer to “interact” with the employee in an attempt to seek out a reasonable accommodation for the disability that would allow the employee to continue to perform the essential functions of his or her job.
The problem is, the EEOC has said the process will likely be different for every employee. As a result, employers must approach it on an individual basis — no templates, scripts or specific step-by-step process instructions.
As a result, employers are struggling to know what they can and can’t do when an employee requests an accommodation (or when the potential need for one becomes known).
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by Christian Schappel
Yet another common employer policy has come under fire from the National Labor Relations Board (NLRB). It doesn’t matter if your workforce is unionized or not — if you’ve got this policy, it could be deemed illegal.
What’s the policy? Asking workers to keep internal investigations confidential.
In a case that involved the telecommunications giant T-Mobile USA Inc., an administrative law judge for the NLRB just ruled that asking employees to keep information that’s shared/discussed during internal investigations confidential infringes upon workers’ rights under the National Labor Relations Act (NLRA).
Employee reports harassment
Angela Agganis was a customer service rep for a T-Mobile USA store in Oakland, ME, when she went to a T-Mobile HR representative, Karen Estes, to report a sexual harassment allegation against her coach.
Afterwards, Estes informed Agganis that she would have to file an incident report. Estes then gave Agganis T-Mobile’s “Notice and Acknowledgement of Duty to Cooperate and Confidentiality,” and she told Agganis to sign and date the notice form.
The notice stated, in part:
“You should keep confidential all communications between you and the Corporate lnvestigator(s) concerning this matter throughout the pendency of this investigation unless permitted by law. This includes all questions and answers during this interview, any written statement that you provide to the investigator(s), and all other information or documents provided to the investigator(s) in connection with this matter.”
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by Christian Schappel
This employee committed workplace misconduct and was fired. She even admitted to the misconduct. So why in the world was her sex discrimination lawsuit allowed to stand?
Because, according to the U.S. Court of Appeals for the 11th Circuit, she’d presented enough evidence that her gender may have been a “motivating factor” in her termination.
Auto mechanic Jennifer Chavez claims that after she announced to her employer, Credit Nation Auto Sales, that she was transitioning from male to female that management was looking for a reason to get rid of her.
In support of her claims, Chavez said after she announced her intent to undergo gender transition surgery:
- Credit Nation’s president said he was “very nervous” about her gender transition and the “possible ramifications”
- the president said he thought Chavez would “negatively impact his business”
- Chavez was asked “not to wear a dress back and forth to work”
- she was told she needed to “tone it down” and not talk as much about her gender transition in the shop, and to be “very careful” because the president “didn’t like” the implications of Chavez’s planned gender transition.
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by Christian Schappel
Senate and House Republicans want the Obama administration to do a little more research before pushing through its changes to the FLSA’s white-collar overtime exemption regulations.
Legislation has been introduced in both branches of Congress to put a stop to the DOL’s final rule on the overtime exemptions, which was just submitted to the White House’s Office of Management and Budget for review — the final step before the rule is made pubic with an effective date.
The bill is called the Protecting Workplace Advancement and Opportunity Act. It would require the DOL to conduct a comprehensive economic analysis on the effect the overtime reg changes would have on small businesses, nonprofits and public employers before it’s officially on the books.
If passed, the bill could potentially accomplish two other things:
- It could push the DOL’s final rule far enough into the future that it would be at the mercy of the next Congress and president. As you may recall, the Congressional Review Act says that if a major rule is submitted to Congress with fewer than 60 legislative session days on its calendar, the next Congress gets 60-days to consider the rule.
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by Christian Schappel
Employers have been asking themselves this question since e-cigarettes came on the market: Should we let people use them at work? Finally, a federal agency has provided an answer.
And that answer is … no.
It came from the National Institute for Occupational Safety and Health (NIOSH), which is responsible for conducting research and making recommendations for the prevention of work-related injury and illness.
Better to be safe …
Was there some new study on the health effects of these devices that made NIOSH make this recommendation to employers? No.
In fact, NIOSH admits that there is very limited data on whether or not e-cigarettes are harmful. But, in its opinion, it’s better to be safe than sorry – at least until more is known about the health effects of e-cigarettes and other related devices.
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by Christian Schappel
Get ready: The DOL’s final rule revising the white-collar overtime exemption regulations has advanced. So employers now have a pretty good idea of when it’ll go into effect.
The DOL just sent the final rule to the White House’s Office of Management and Budget (OMB). This is the final step before the rule is published and made public for all to see.
If the OMB follows its normal review timeline, it should be approved in four to six weeks (although, it could take months).
So if it sticks to its normal schedule — and there’s no reason to think it won’t — employers should be able to get eyes on the final rule by early- to mid-May.
Avoid Congressional roadblocks
The fact that the rule is already in the OMB’s hands means it’s most likely to avoid an entanglement with the Congressional Review Act, which HR Morning broke down last month. In fact, the act may very well be the reason the rule was submitted for review much earlier than originally anticipated.
In a nutshell, the act allows Congress to disapprove “major” final rules promulgated by federal agencies — like the DOL. But the disapproval can be shot down by a presidential veto — meaning the FLSA changes were highly unlikely to be challenged during President Obama’s tenure.
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by Jared Bilski
One of the biggest of criticisms of workplace wellness programs is the fact that it’s difficult (if not impossible) to determine the dollars-and-cents Return On Investment (ROI). As a result, employers are turning to another metric to gauge the overall success of their wellness programs.
The latest wellness metric to gain some traction among employers: Value On Investment (VOI).
In fact, “A Closer Look: Workplace Wellness Outcomes,” a recent study by the International Foundation of Employee Benefit Plans (IFEBP), revealed that 50% of employers are using at least one VOI measure to track the overall success of their wellness programs.
Broad scope
What is exactly is VOI? It’s a broad measurement systems that looks at everything from reduced health claims to increased productivity and morale. The most popular VOI measures used by employers in the study included:
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by Tim Gould
Every year cybercriminals prey on unsuspecting taxpayers with a variety of scams and phishing schemes. This year is no exception, but it looks like the bad guys are taking aim at HR pros, as well.
In fact, the IRS has issued a specific alert about a scam that’s specifically designed to trick HR and payroll pros into providing personal info on employees.
A message from the CEO
Here’s what HR pros need to know: The HR/payroll-specific phishing scheme is a variation of a “spoofing” email. Essentially, the email is made to look as though it came from within the actual company — such as from a CEO or other high-ranking executive.
A common example the IRS is seeing involves an email from the CEO to a company payroll or HR employee. In the email, the individual/individuals posing as the CEO will ask the employee receiving the email to provide a variety of personal information for “review” by the exec.
And it appears this scheme has worked on a number of occasions. IRS Criminal Investigation is already reviewing a number of cases where HR and payroll pros have been tricked into sharing social security numbers with cybercriminals.
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by Guest Author
Does your incentive program bolster company culture or diminish it? Guest poster Catherine Spence explores how companies can design incentives that strengthen engagement and reinforce organizational values.
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“Company culture” is a hot term in human resources circles right now. But what does it actually mean? Is it all just about the perks? Yes, a company’s culture may be partly comprised of material benefits, like free vending machines or foosball tables in the break room, but these aspects don’t capture the whole picture.
In the Merriam-Webster dictionary, the first definition of the word “culture” is “The beliefs, customs, arts, etc., of a particular society, group, place, or time.” That’s really what company culture is all about, too: the collective values that govern a group’s daily practices.
Thus, for many HR executives, company culture is made up of the conceptual values that they feel employees should embody. Often, these are conflated with the ways in which company leaders want customers to experience their brands, leading to a nebulous and vaguely defined cultures.
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by Christian Schappel
Scorned employees will cry “FMLA protection” for just about anything these days. The question is, when can the argument stick?
The answer, unfortunately, is all too familiar: It depends.
All employers can do is look at what the courts are currently saying, and use their guidance to direct FMLA policies and procedures.
In the most recent case to cross our desks, an employer’s smartly crafted policies won the day.
Migraines caused her to miss work
The case involved Jodi Lasher, a registered nurse for Medina Hospital in Ohio.
Lasher suffered from severe, sometimes debilitating, migraine headaches. These migraines had caused her to miss work on several occasions, for which she was issued a written warning. The hospital’s management had even received complaints from employees that Lasher had “disappeared” from her unit to deal with her headaches.
Medina hospital did the right thing. It approached Lasher about exploring possible accommodations for her condition. Then, after determining that accommodations weren’t applicable to her situation, the hospital’s management team recommended that Lasher use intermittent FMLA leave to deal with her condition.
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by Jared Bilski
The Summary of Benefits and Coverage (SBCs) statements that Obamacare requires employers to distribute to employees will look a little different next time around, thanks to new proposed changes by the feds.
As HR pros know, the SBCs are statements that any employers offering healthcare coverage are required to distribute to eligible employees at open enrollment time. Generally, those statements are created by the health insurer.
Critics have consistently argued that, as structured, the SBCs are confusing and difficult to read, as well as lacking certain key info.
So the three main federal agencies charged with ACA implementation have set out to make some changes to the SBC templates as they currently stand.
A third cost-example
One of the SBC changes in the proposed final regs centers around specific cost examples. Currently, the SBCs provide examples for the typical costs associated with pregnancy and type 2 diabetes. Under the proposed final regs, the revised SBCs would also include a cost-example for a foot fracture, including specifics for ambulance services, emergency room care, X-rays, crutches and physical therapy.
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by Christian Schappel
The DOL keeps changing its tune on when it’ll release the final revisions to the overtime exemption rules.
The agency’s final rule will be kind of a big deal. So employers really want an accurate timeline on when the rule will be released — so they can plan accordingly.
Problem is, the DOL itself doesn’t appear to have a specific timeline mapped out within its own walls for when the rule will be released.
Here’s what we know:
- Last fall, at the American Bar Association’s Labor and Employment Law conference in Philadelphia, the DOL’s Solicitor of Labor M. Patricia Smith said during a panel discussion that the finalized changes to the FLSA’s overtime eligibility rules likely won’t be issued until late 2016.
- Shortly after, the DOL released its fall 2015 regulatory agenda, which said the agency was targeting a July 2016 release date for the final rule. The deadline wasn’t set in stone, but it gave employers an idea of when they should be ready for the new regulation.
- Then DOL Secretary Thomas Perez told Bloomberg BNA in an interview that the agency is “confident we’ll get a final rule out by spring 2016.” Not long after Perez’s statements went public, the Congressional Research Service, a branch of the Library of Congress, released a report that suggested the DOL had until approximately May 16 to release the rule to avoid giving the next Congress and president the power to overturn the rule. The report detailed a little-known mechanism created by the Congressional Review Act that 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. Following the release of the report, Perez’s statements made perfect sense, until …
- … Smith, while speaking at another meeting of the American Bar Association, said the DOL’s white collar exemption rule would be published in July 2016 (a tip of the hat to law firm Ford & Harrison for bringing her comments to our attention). Smith also stated that the rule will become effective 60 days after it’s published.
- Then, roughly a week later, Smith backtracked … a bit … by saying the final rule could be published in or before July. She also said the rule will take effect at least 60 days after it’s published.
What should employers do?
What is all of this telling employers? This is a complicated law, and the DOL appears to be poring over the details carefully. It doesn’t want to promise a release date it can’t meet.
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by Jared Bilski
If you were planning to answer those new “optional” compliance questions the IRS included on Form 5500, you’ll want to hold off.
That’s because the agency just reversed course on its initial instructions to employers about the Form 5500 changes.
The IRS is now specifically saying that “plan sponsors should skip these questions.”
Mixed message
If you’re unfamiliar with the changes, here’s some background: A little while back, the IRS decided to include some new compliance questions for the 2015 plan year.
Along with the announcement, the agency also released an FAQ guide to the compliance questions and said that answering the questions is optional – for now. Despite technically being voluntary, the IRS seemed to be sending the message that it would behoove firms to answer the questions.
In fact, the IRS itself said, “we strongly encourage you to answer them.”
New instructions from the feds, however, now say:
“New Part VII (IRS Compliance Questions) was added to Schedule R for purposes of satisfying the reporting requirements of section 6058 of the Code. The IRS has decided not to require plan sponsors to complete these questions for the 2015 plan year and plan sponsors should skip these questions when completing the form.”
The IRS also told employers to skip new financial information reporting — Lines 4o, 4p, 6c and 6d that were added to Schedules H and I — on the 2015 Form 5500.
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by Christian Schappel
The ADA’s interactive process has been one of the more vexing aspects of employment law recently.
Not only has the EEOC ramped up its oversight of this complex area, but the regulations surrounding the interactive process don’t paint a black-and-white picture of what exactly employers need to do.
Interactive process: a definition
As you know, the need to initiate the interactive process with an employee occurs when an employer first finds out that the employee is suffering from a disability that may affect the person’s ability to perform his or her job.
In a nutshell, the process requires the employer to “interact” with the employee in an attempt to seek out a reasonable accommodation for the disability that would allow the employee to continue to perform the essential functions of his or her job.
The problem is, the EEOC has said the process will likely be different for every employee. As a result, employers must approach it on an individual basis — no templates, scripts or specific step-by-step process instructions.
As a result, employers are struggling to know what they can and can’t do when an employee requests an accommodation (or when the potential need for one becomes known).
Click here for entire article.
by Christian Schappel
The most important part of being in a leadership position is providing great feedback. And there’s a phrase that’s been scientifically proven to help you — and your managers — provide better feedback.
Here it is:
“I’m giving you these comments because I have very high expectations, and I know that you can reach them.”
It comes from a team of psychologists from institutions like Stanford, Yale and Columbia who were looking into what it takes to present great feedback. The team studied middle school teachers’ feedback strategies with their students and found that students who received this feedback revised their work at a much higher rate than those who didn’t. The phrase also helped improve student performance significantly.
The results of the study were detailed by Daniel Coyle, author of The Talent Code: Greatness Isn’t Born. It’s Grown. Here’s How. and The Little Book of Talent: 52 Tips for Improving Your Skills. A tip of the hat goes to Jeff Haden who found this little nugget in Coyle’s work and shared it over at Inc.
Why it works
So the million-dollar question is: Why is this phrase so effective?
According to Coyle, it accomplishes one very important thing before you even begin to present the details of your actual feedback: It forms a connection with the recipient and lets him or her know they’re part of a team.
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by Tim Gould
What to do when it appears a person’s injury may prevent him or her from doing their job:
Take your time, and engage in the ADA’s interactive process.
Otherwise, you could end up like Jacobs Field Services, a construction company, which is staring down the barrel of an expensive ADA jury trial.
It offered Michael Cannon a field engineer job, but his pre-employment physical revealed a rotator cuff injury.
‘Not able to meet job duties’
He was cleared to work, but only if granted several accommodations, including not having to lift his hand above his shoulder.
According to the court ruling, the turning point occurred when human resources notified JFS’s technical services manager about the doctor’s proposed accommodations and sought approval to proceed with Cannon’s hiring. In response, the technical services manager stated that Cannon would “not be able to meet the project needs and required job duties.”
A human resources representative contacted Cannon around this time. Not mentioning the seemingly unequivocal position taken by the manager that Cannon could not do the job, the HR representative informed Cannon only that JFS had concerns that he could not reach above his head with his right arm.
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