Archive for the ‘Compliance’ Category

Travel Time and the FLSA

Thursday, September 18th, 2014

In today’s video blog, George Ports, CAI’s Senior Executive of government relations and member of the Advice and Resolution team, shares helpful information for understanding the tricky subject of calculating compensable travel time.

George starts by saying some of the most confusing wage and hour regulations are those dealing with travel time for non-exempt employees. The question usually asked is, “is it or isn’t it compensable?” This confusion is due in part to the number of different situations involving travel.

George lists several scenarios that demonstrate a compensable travel time situation. For example, he says travel time to or from work is not compensable, but time that cuts across an employee’s regular work day is. He gives more examples in the video.

The video also includes information relevant with today’s technology-driven workplace. George shares the following information in the video: If an employee gets in his vehicle and receives special instructions on his cell phone or laptop before leaving home that time is compensable.

If you have questions about travel time or any other wage and hour regulation, please call CAI’s Advice and Resolution Team at 919-878-9222 or 336-668-7746.

Is the EEOC Way off with this new “wellness” lawsuit? Not Really.

Thursday, September 11th, 2014

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2014 Triad Employment Law Update. This post originally appeared on her blog Employment and Labor Insider.

Robin Shea, Partner at Constangy, Brooks & Smith

Robin Shea, Partner at Constangy, Brooks & Smith

The Equal Employment Opportunity Commission filed suit against Wisconsin-based Orion Energy Systems, Inc., over its wellness program and its treatment of ex-employee Wendy Schobert, who was not a fan of the program. The lawsuit contends that the program’s health risk assessment is an unlawful “medical examination” and that the company retaliated against Ms. Schobert for failing to have a positive attitude about it. Both the medical examination and the retaliation, says the EEOC, violate the Americans with Disabilities Act.

If you’ve been keeping an eye on this wellness/ADA issue — as I have here, here, here, and here — you know that the EEOC has not been as forthcoming with guidance as we’d ideally like, although in May it promised that we’d be getting something soon. That having been said, if the EEOC’s allegations in this lawsuit are correct,* then Orion may have a problem.

*All we have now is the lawsuit and the EEOC’s press release. We have not heard Orion’s side of the story.

According to the lawsuit, participants in Orion’s wellness program had to use a range-of-motion machine, provide their medical histories, and have blood work done. As we discussed last week, the ADA says that this kind of information can be requested of current employees only if it is “job-related and consistent with business necessity” or if the information is requested in connection with a voluntary wellness program.

Because Orion obtained the information for “preventive” reasons, it was not JRACWBN (Job-Related and Consistent With Business Necessity) in the least. But it was clearly obtained in connection with a wellness program.

And Orion’s wellness program was “voluntary” . . . technically speaking. Employees didn’t really have to participate — as long as they were willing to pay 100 percent of their health insurance premiums out of pocket. If an employee participated in the program, the company paid 100 percent of the premiums. If an employee did not participate, the company paid zero percent of the premiums. The EEOC says that the cost of health insurance premiums at the times relevant to the lawsuit was $413.43 a month for individual coverage and a whopping $744.16 a month for family coverage. And on top of that, Orion assessed a $50 a month penalty to non-participating employees.

So, yeah, you could decline to participate if you were Donald Trump. But most people presumably went with the program because they couldn’t afford not to. And that is why the EEOC says Orion violated the ADA’s “medical examination” provisions — it was asking for medical information that was not JRACWBN, and even though the information was obtained in connection with a wellness program, the program wasn’t truly “voluntary” because of these draconian penalties.

The “retaliation” part of the lawsuit is more routine. Ms. Schobert didn’t like the wellness program, and she not only refused to participate, but she also allegedly tried to get other employees to resist, I’m guessing like the Penn State wellness debacle that got so much publicity last year. According to the EEOC’s lawsuit, HR called her in and asked her to adjust her attitude. When she didn’t, they fired her.

This Orion suit will be one to watch, and employers should be looking forward to getting some concrete preventive guidance from the EEOC about wellness programs and the ADA — particularly the “voluntariness” issue. My ultra-conservative view has been that rewards are probably all right, but that penalties are dangerous. And an employee can always argue that an employer’s refusal to give a non-participant a “reward” is, in effect, a “penalty” for non-participation. Especially when we’re talking about monthly health insurance premiums of $400-700 a month.

It appears that I am not the only one on the employers’ side who is wary about aggressive wellness programs and the ADA.

Finally, it’s worth keeping in mind that Ms. Schobert was terminated in 2009, and so the Affordable Care Act was not at issue. The ACA wellness provisions do not address the issue of voluntariness. But they do specifically authorize employers to grant significant economic “rewards” to employees who achieve results (for example, by reducing their Body Mass Index) in so-called “health-contingent” wellness plans.

All the more reason that employers need help from the EEOC in knowing the agency’s position on the interplay of the ADA wellness restrictions (as well as those that apply under the Genetic Information Nondiscrimination Act) and the ACA.

Robin Shea is presenting at the 2014 Triad Employment Law Update on November14th at the Grandover Resort in Greensboro. In addition to receiving information on new decisions from the EEOC and DOL, attorneys from Constangy, Brooks and Smith, LLP will provide you with the most recent updates in state and federal employment law. Register today at www.capital.org/triadlaw.

Q&A: 6 Things You Should Know About Affirmative Action Plans

Thursday, August 28th, 2014

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares information on affirmative action plans from the OFCCP. Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

If your organization provides goods or services to the federal government either directly or indirectly, you may be subject to affirmative action regulations.  Just in 2014, regulation changes regarding affirmative action programs for protected veterans and individuals with disabilities became effective.  President Obama has also signed several Executive Orders affecting federal contractors.  Is your organization in compliance with these recent and proposed changes?

Q: Are you covered as an affirmative action employer?

A: If you have federal contractors or subcontracts of at least $10,000, you are covered under the affirmative action regulations.

 

Q: What are the affirmative action requirements?

A: One of the main requirements is to annually develop written affirmative action plans if you have federal contracts/subcontracts of $50,000 or more and 50 or more employees. There are a number of other requirements as well.

 

Q: What is the impact of the changes to organizations regarding protected veterans and individuals with disabilities?

A: Some of the major changes that became effective in 2014 require setting hiring benchmarks for veterans and utilization goals for individuals with disabilities.  They also require federal contractors to solicit self-identification of applicants for veteran and disability statuses prior to job offer.

 

Q: What type of data is needed to develop an affirmative action plan?

A: In order to develop an annual affirmative action plan, you will need a current listing of employees.  This employee listing will be used to determine if Placement Goals must be established for women and minorities.  This listing will also be used to determine if utilization goals for individuals with disabilities are met.  Contractors must also review employment decisions for hires, promotions and terminations for the 12 months prior to the employee listing.

 

Q: What is required of affirmative action employers other than the written affirmative action plan?

A: There are a number of additional requirements beyond an affirmative action plan.  These requirements include the following: record keeping requirements, tracking applicant data, annually filing EEO-1/VETS-100A reports, notifying subcontractors & vendors of obligations, specific language in covered purchase orders & subcontracts, listing jobs with state employment service delivery systems, outreach and recruitment efforts, etc.  CAI can provide additional information regarding these and other requirements.

 

Q: What are the recently signed Executive Orders and proposed regulation changes?

A: President Obama has signed several Executive Orders in 2014 that may lead to changes for federal contractors and subcontractors.  They include, establishing higher minimum wages for federal contractors, expanding affirmative action requirements to include gender identity and sexual orientation as protected groups, protect workers from retaliation when discussing pay with other employees.  The OFCCP also issued proposed regulations that would require contractors to submit compensation information annually in an expanded Employer Information Report EEO-1

CAI has a team dedicated to affirmative action and can assist with affirmative action questions.  Please contact Kaleigh Ferraro, Manager of Affirmative Action Services directly at 919-713-5241 or kaleigh.ferraro@capital.org  for additional information or other affirmative action questions.

 

Wage and Hour Issues: Allowed Deductions From an Exempt Employee’s Salary

Thursday, August 7th, 2014

In today’s video blog, CAI’s Senior Executive of Government Relations and member of the Advice and Resolution team, George Ports, discusses allowed deductions from an exempt employee’s salary. George starts with a reminder: exempt employees are paid on a salary basis. Deductions are allowed but are limited. George shares an example in the video.

Another question that George explores is whether an employer is allowed to suspend an exempt employee without pay for violating a major work rule. He says the answer is yes, but the work rule must be major. He gives suggestions of what counts and what doesn’t.  George points out several scenarios that illustrate why you would have to pay an employee based on when he or she was suspended.

George offers additional deductions that can be made to an exempt employee’s salary in the video. One of the deductions he explains is the entire week concept. If there is not work completed by the employee in an entire week, the employer does not have to pay the employee for that week. Highlighting today’s technology, George emphasizes that if an employee is responding to emails or voicemails during this week, the entire work week exception is invalid.

Improper deductions from an exempt employee’s salary can destroy the exemption status for that employee and the exemption status of employees in that same classification, George says in the video. He also lists deductions that an employer is not allowed to take from an exempt employee’s salary.

If you have any questions about wage and hour regulations, please call CAI’s Advice and Resolution team at 919-878-9222 or 336-668-7746.

Understanding USERRA and its Employment Protections

Thursday, June 26th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information about The Uniformed Services Employment and Reemployment Rights Act (USERRA).

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides certain reemployment rights and benefit protections for military personnel including members of the National Guard and reservists. USERRA protects applicants and employees who serve in the military, or who apply to serve, from employment discrimination, and provides employment and reemployment rights after completion of military service or training, or application for service.

USERRA requires that service members provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. An employee should provide notice as far in advance as is reasonable under the circumstances. Additionally, service members are able (but are not required) to use accrued vacation or annual leave while performing military duty. USERRA establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights to five years; however, there are some exceptions to the five-year limit.

USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service (the long-standing “escalator” principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment.

The period an individual has to make application for reemployment or report back to work after military service is based on time spent on military duty. For service of less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period. For service of more than 30 days but less than 181 days, the service member must submit an application for reemployment within 14 days of release from service. For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service.

For more information on USERRA, check out Chapter 14 of CAI’s Employers’ Desk Manual on our web site (www.capital.org) under the Member Services section.

Improving Employee Attitudes Toward Safety in the Workplace

Tuesday, May 27th, 2014

In today’s post, Advice and Resolution team member Renee’ Watkins shares ways in which you can help your employees keep safety as a top priority in the workplace.

Renee' Watkins, HR Advisor

Renee’ Watkins, HR Advisor

Most safety managers will agree that the most difficult part of implementing a safety policy is getting employees to take safety seriously and to support the policy as it relates to them and to their fellow team members.

In the day-to-day production environment, where employees have a specific set of tasks to execute each day, safety concerns regarding the safe and proper execution of these tasks are often overlooked as routine redundancy takes over. The repetitive nature of the process can sometimes cause employees to implement shortcuts or even ignore safety precautions.

This is further complicated by taking new hires through the safety policy training only to have them mentored by someone who does not take safety seriously and undermines everything they have been taught through onboarding.

So, how does a safety manager promote safety policy throughout the organization with existing employees and alter their thought process to put safety at the forefront of everything they do? Below are three lessons and insights taken from high-stake manufacturing and construction industries that may help safety managers engage their employees in supporting a safety policy across the board.

Demonstrate Employee Wellness as a Priority

Ensure that corporate leadership prioritizes wellness in the workplace with a healthy balance of employer-sponsored benefits for both the physical and emotional well-being of the workforce. Opportunities for gym memberships, nutrition analysis and professional counseling are just a few examples of how management can show concern for their employees’ overall health.

Involve Employees in Safety Policy and Engagement

Communication should be a two-way street in order for any policy to work effectively. Regular emails or other policy reminders with regard to safety in the workplace will serve to remind everyone that safety is a priority, as well as a concern. Employees should also be involved in providing feedback to management relating to any safety concerns they notice or would like to see incorporated into a policy. An open-door approach, which encourages employees to speak freely if they feel there is a risk on the production floor, should be present and communicated.

Measure Employee Stress Levels

Employees are often unable to separate their professional lives from their personal lives and many have issues they deal with on both sides of the fence each and every day. Management in every level of the organization should pay close attention to the overall emotional health of their employees and act to offer assistance at any time when something seems amiss. Team members who may know the details of what their fellow co-workers are facing should be encouraged to speak up and inform management when they feel involvement is warranted, without fear of being exposed for breaking the confidence of their co-worker.

These techniques can also apply to more than just manufacturing and construction, and will help safety managers to convey the importance of employee safety with management’s full support. By demonstrating a genuine concern for employee safety and promoting that concern through frequent and consistent communications with the workforce, safety in the workplace will remain at the forefront of each worker’s mind as they go about the execution of their daily tasks.

For additional help with your company’s safety efforts, please call a member of CAI’s Advice and Resolution Team at 919-878-9222 or 336-668-7746.

Key Learnings from 5 Different Areas of State and Federal Employment Law

Thursday, May 22nd, 2014

PPT Slide ELLU 2014More than 430 HR professionals and company executives attended CAI’s 2014 Employment and Labor Law Update. Participants traveled to the McKimmon Center in Raleigh for the two-day event on May 14 and May 15 to receive the latest updates in state and federal law.

Knowledgeable attorneys from Ogletree Deakins, as well as an expert from CAI, shared important changes in the law at the conference. Topics the presentations covered included workplace investigations, FMLA, wage and hour issues, the ADA, and more.

Below is some of the information, which covers five different areas of employment law, discussed at the conference:

Expect more aggressive investigative tactics from the EEOC:

  • The EEOC is making extensive requests for information not germane to the charge at hand
  • Increased threats and uses of subpoenas
  • Increased demand for on-site investigations
  • During on-site investigations, EEOC increasing demands to review signage, personnel files and make general employee inquiries unrelated to charge
  • Increased demands for on-site tours and witness interviews
  • Aggressive behavior in settlement negotiations

Enforcement Trends in Immigration Law:

  • There’s nothing random about audits from ICE
    • Most audits are lead-driven and are discovered by a tip-line complaint, local law enforcement data sharing, and federal agency data sharing
  • Avoid these common I-9 mishaps:
    • Using a wrong or outdated I-9 form
    • Not completing Section 1 or 2 in the specified time frame
    • A new hire did not sign Section 1
    • Someone else completes Section 1 but they do not have a Preparer or Translator Certification
    • Hire date is missing
    • Employer’s address is incomplete

Updates in the ADA:

  • Leave as a reasonable accommodation
    • Granting a leave of absence may be considered a reasonable and required accommodation under the ADA if no other sufficient reasonable accommodation is available
    • Maximum leave policies don’t satisfy the ADA. However, that doesn’t mean you can’t have one. You will just have to consider the ADA before discharging an employee for exceeding the maximum
    • An accommodation is “reasonable” if it “seems reasonable on its face, i.e., ordinarily in the run of cases”—in other words—if it appears feasible or plausible

Updates in NC Legislation—Bills of Interest:

  • House Bill 846: Job and Education Privacy Act- would prohibit employers and colleges from requiring individuals to disclose access information to personal social media and email accounts
    • Passed the house on May 16, 2013 and is in the senate; eligible for consideration in the 2014 session
  • House Bill 872: Protect NC Right-To-Work – declares it unfair trade practices for any contract to require a contractor or sub-contractor to use unionized labor. Contracts involving federal funds would be exempt
    • Passed in the House on May 2, 2013 and is in the senate; eligible for consideration in 2014 session

The NLRB is cracking down and scrutinizing company rules in several business areas, including social media:

  • Avoid the following in your company social media policy to stay on good terms with the NLRB
    • Prohibiting discussion of wages, benefits, and other terms and conditions of employment
    • Prohibiting anyone from sharing confidential information without clarifying the definition
    • Prohibiting “no-disparagement” or words of “negative impact”
    • Vague restrictions about inappropriate conversations
    • Prohibiting the use of trademarks or company logos

For additional information on CAI’s conferences, please go to https://www.capital.org/eweb/DynamicPage.aspx?site=cai&webcode=cai-training-conferences.

 

Wage and Hour Law – Lectures, Seminars and Meetings

Thursday, May 1st, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information about wage and hour compliance.

john g editUnder the Fair Labor Standards Act (FLSA), an employer must pay its employees at least the minimum wage for all hours worked, and time and one-half overtime pay based on an employee’s regular rate of pay for all hours worked in excess of 40 in a workweek unless the employee is exempt for some reason. The time an employee spends in meetings, training, attending a class or course, or attending a workshop may or may not be hours worked based on the circumstances and under certain conditions.

Employee attendance at meetings, lectures, training programs and similar activities need not be counted as working time if the following criteria are met:

  • Attendance is outside the employee’s normal working hours;
  • Attendance is voluntary;
  • The course, lecture or meeting is not directly related to the employee’s job; and
  • The employee does not perform any productive work during such attendance.

Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary if the employee is given to understand or led to believe that his or her present working conditions or the continuance of his or her employment would be adversely affected by nonattendance.

The training is directly related to the employee’s job if it is designed to make the employee handle his or her job more effectively as distinguished from training him or her for another job, or to a new or additional skill. Where a training course is instituted for the purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his or her present job, the training is not considered directly related to the employee’s job even though the course incidentally improves his or her skill in doing his or her regular work.

Of course, if an employee on their own initiative attends an independent school, college or independent trade school after hours, the time is not hours worked for the employer even if the courses are related to the employee’s job.

Additional information regarding wage and hour issues will be shared at the 2014 Employment and Labor Law Update. The conference will take place at the McKimmon Center in Raleigh on May 14 and May 15. In addition to wage and hour compliance, , presenters will cover immigration law, NC legislature, ADA, minimizing lawsuits, protecting proprietary information, and more. Register today at www.capital.org/lawupdate.

Shifting Sands in the Small Group Market Under the Affordable Care Act

Thursday, April 24th, 2014

The post below is a guest blog from Steve Byrd who serves as Principal, Health & Welfare Consultant  for CAI’s employee benefits partner Hill, Chesson & Woody.

 hcw april picMany questions have arisen from the ever changing Affordable Care Act (ACA), specifically amongst the small group employers. Many feel as though they have been left out in the cold with more questions than answers when it comes to the changing regulations.

“Should I renew early and what happens if I do? How do I handle the new small group age rates? How do I communicate the new benefit changes concerning, smoker rates, out-of-pocket maximums, age-rated premium schedules, metallic levels, pharmacy MAC pricing changes, pediatric dental/ vision changes, and deductible limit requirements?”

With new regulations published every week and a variety of health-care related bills moving through Congress every day, it is difficult for a large company much less a small employer, to keep up with the changes.

One bill recently passed through Congress and signed by the President (Protecting Access to Medicare Act of 2014)) is worthy of special attention by small employers. This bill, known as the “doc fix” bill, includes a section that ends the limitations on deductibles for small group employer-sponsored health plans that was previously imposed by the Affordable Care Act.

Prior to passage of this bill, deductible levels of no more than $2,000 for individuals and $4,000 for families were required in the small group market. This deductible cap made it extremely difficult for small group carriers to offer a wide range of plan designs within their small group plan offerings.

Small group carriers struggled to design plans that met the deductible requirements while also meeting the required Actuarial Value (AV) bands. The ACA requires small group carriers to offer plans at four specific AV levels (called Metallic Levels): Platinum (90%), Gold (80%), Silver (70%), and Bronze (60%). Deviations of no more than 2% are allowed. To operate within these Metallic Levels, many small group carriers made changes that resulted in higher per occurrence copays and increased costs for non-generic medications.

The passage of the Protecting Access to Medicare Act of 2014 allows carriers designing plans for the small group market to move beyond the $2,000/$4,000 deductible level and still meet the required Metallic Levels. It also allows small employers to remain creative in their plan designs, especially those that have focused benefits strategies around Consumer Driven Health Plans. To find out more about this recent change to the ACA, continue on to Robb Mandelbaum’s coverage on the “doc fix” bill.

Contacting an Employee’s Health Care Provider under FMLA

Tuesday, April 22nd, 2014

CAI’s Advice and Resolution Team answers several questions from members daily. The team often receives questions concerning the Family and Medical Leave Act (FMLA), such as this one below:

Does the Family and Medical Leave Act (FMLA) allow an employer to contact an employee’s health care provider about his or her serious health condition?

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

In today’s post, Advice and Resolution Team Member John Gupton offers guidance for this employer question:

If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. However, the employer may contact the health care provider for purposes of clarification and authentication of the medical certification (whether initial certification or recertification). Authentication means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. Clarification means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.

Under the regulations, however, when contacting an employee’s health care provider for authentication or clarification of the medical certification, an employer may use a health care provider, a human resource professional, a leave administrator or a management official. But, the FMLA regulations make clear that in no case may the employee’s direct supervisor contact the employee’s health care provider.

Also, the FMLA regulations state that contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. In order for an employee’s HIPAA-covered health care provider to provide an employer with health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer.

If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear. It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary.

For more information, please contact a member of CAI’s Advice and Resolution Team at 919‑878‑9222 or 336‑668‑7746.