Volume 5 : Issue 12 TM
www.HRProfessionalsMagazine.com
Compensation and Performance Management SPECIAL ISSUE
May a
Religious Employer
Discriminate?
Turning Back the Clock on
Workplace Flexibility There and Back Again – Rehire Rules After the ACA
Mark J. Schmit,
Ph.D., SHRM-SCP Executive Director SHRM Foundation Reframing the Analysis of Academic Internship Programs
Job Descriptions Compliance
Heightens with Proposed DOL FLSA Regulations
JUST PUT IT ON THE COMPANY CARD…NOBODY WILL NOTICE.
YOU’RE REALLY SHOWING OFF YOUR BEST ASSETS TODAY.
THEY’RE WORRIED ABOUT OVERTIME. I’M JUST WORKING OFF THE CLOCK.
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What you don’t hear can still hurt you. The things employees say when you’re not around can cause legal troubles for you. Fisher & Phillips provides practical solutions to workplace legal problems. This includes helping you find and fix these kinds of employee issues before they make their way from the water cooler to the courthouse.
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ORLANDO PHILADELPHIA PHOENIX PORTLAND SAN ANTONIO SAN DIEGO SAN FRANCISCO
SEATTLE TAMPA WASHINGTON, D.C.
Bringing Human Resources & Management Expertise to You
67%
of HR professionals believe that the new DOL OT regs will lead to decreased workplace flexibility. www.HRProfessionalsMagazine.com Editor
Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher
The Thompson HR Firm, LLC HR Consulting and Employee Development Art Direction
Park Avenue Design Contributing Writers
Chris Anderson Jennifer Blake Blaine Blood Bruce E. Buchanan William Carmichael Laura Clayman Heather Crow Harvey Deutschendorf Kristy Gray Nancy Hammer Susan Hanold Jimmy Hinton Amy Jensen Blair and Bruce Johanson Gabriel McGaha Chris Menard Joe Meyer Ricky Reynolds Blake Rogers Cammie Scott Bailey Yeager Board of Advisors
Austin Baker Jonathan C. Hancock Ross Harris Diane M. Heyman, SPHR John E. Megley III, PhD Terri Murphy Susan Nieman Robert Pipkin Ed Rains Michael R. Ryan, PhD Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine. com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors. HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher. All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2011 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.
Features
4 note from the editor 5 Profile: Mark Schmit, PhD, Executive Director SHRM Foundation 13 The SHRM Foundation 26 Turning Back the Clock on Workplace Flexibility 31 Book Look: Building a Magnetic Culture 38 The New World of Branding, Resumes and Interviews
WEB EXCLUSIVES HTTP://HRProfessionalsMagazine.com /Exclusive
Compensation and Performance Management
12 Adapting to an Ever-Shifting Talent Landscape 14 Proposed Changes to FLSA Increasing the Exempt Status Wage Threshold 18 Job Descriptions Compliance Heightens with Proposed DOL FLSA Regulations 23 The Case for Job Evaluation 24 Your Employees – Love ‘em or Lose ‘em
Employment Law
10 Holier than Thou: Do Religious Employers Have the Right to Discriminate Against Employees? 28 Reasonable Accommodation and the Employer’s Obligation – What’s the Trigger? 32 Reframing the Analysis of Academic Internship Programs 34 The Strategic Business Advantage of Noncompetition Agreements (in Kentucky) 37 Employer’s Unique Defense Rejected
Next Issue
Top Employee Benefits and Administration Companies – Deadline to submit articles and ads is December 10
Benefits
20 There and Back Again – Rehire Rules After ACA 22 Making a List and Checking it Twice 36 Is a “Cadillac” Worth It?
Industry News
6 Highlights of 2015 WAHRA Leadership Conference in Fort Smith 7 Highlights of WTSHRM Fall Employment Law Conference in Jackson 8 Preview of 2016 TNSHRM Conference in Memphis 16 Highlights of Wimberly Lawson 36th Annual Employment Law Conference in Knoxville 29 Preview of AWA | SHRM-Memphis Seminar 30 Highlights of Memphis Chamber HR Legal Summit 33 Preview of MBA | SHRM-Memphis Seminar www.HRProfessionalsMagazine.com
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a note from the Editor
The focus of this issue is compensation and performance management. We are excited about the many articles we are bringing you that will provide the information and guidance you need to assist in budget planning and the annual review process. The proposed changes to the FLSA overtime regulations continue to be a hot topic as we await the final ruling on the duties test from the DOL. We have an update by Joe Meyer on page 14. As you know, one of the concerns with the proposed new regulation is the loss of flexibility that many employees will suffer. Nancy Hammer, SHRM Senior Government Affairs Policy Counsel, discusses the impact in her article on page 26. You don’t want to miss this important discussion!
We
Greg Stanley, Vice President of HR for Mastercraft Boat Company; Cynthia, and James Wimberly, Jr. at the Thursday evening reception for the Wimberly Lawson 36th Annual Labor and Employment Law Conference in Knoxville.
How will the changes to the overtime regulations affect your job descriptions? Bruce and Blair Johanson discuss solutions on page 18. Jennifer Blake provides an update on job evaluations on page 23. We are also excited about Dr. Susan Hanold’s analysis of
are so excited to have Mark Schmit, Ph.D., Executive Director of the SHRM Foundation, on the cover of our December issue! The SHRM Foundation advances global human capital knowledge and practice by
providing thought leadership and educational support; and sponsoring, funding and driving the adoption of cutting edge, actionable, evidencebased research. Dr. Schmit was previously the Vice President of Research for SHRM. He has been with SHRM for almost six years and has 25 years of prior experience in the field of human resources.
the ever-shifting talent landscape on page 12. Keeping up with the legal challenges of the Affordable Care Act is ongoing. Laura Clayton provides a detailed guide for rehiring employees under the ACA, and Cammie Scott brings us up-to-date on the ACA cadillac tax. As always, we bring you articles on employment law and employee benefits in every issue to keep you updated in these important HR areas. As you make your holiday gift list, please don’t forget to include the
Dr. Schmit is also certified as a SHRM-SCP. You can read his entire
SHRM Foundation. Let’s remember to give to the organization that
professional profile on page 5.
makes HR research and education available to all HR professionals. You can donate online at shrmfoundation.org/donate. Please Like
In our December issue we are highlighting the SHRM Foundation and
our Facebook page and follow me on Twitter @cythomps for up
the work they do for our profession. Bailey Yeager, Senior Marketing
to the minute coverage of SHRM events and breaking news. Mark
Specialist with the SHRM Foundation, has contributed an article on
your calendar and join us on December 16 for our monthly compli-
page 13, which discusses the work of the Foundation including their
mentary virtual event sponsored by Data Facts. You always earn
educational goals. More than 200 scholarships are awarded each
SHRM PDC and HRCI recertification credits. If you are not receiving
year to HR practitioners and students to help pursue certification
our invitation, please send me an email at cynthia@hrprosmagazine.
and graduate and undergraduate degrees.
com and we will add you to our distribution list.
Happy Holidays!
Sign up for our RSS News Feed to receive up to the minute HR Alerts on changing legislation affecting our workforce. www.HRProfessionalsMagazine.com. 4
www.HRProfessionalsMagazine.com
Mark on the cover
J. SCHMIT, PH.D.
MARK J. SCHMIT, PH.D., SHRM-SCP Mark J. Schmit, Ph.D., SHRM-SCP, is the Executive Director for the Society for Human Resource Management (SHRM) Foundation. In this capacity he leads the Foundation’s efforts to advance the HR profession through scholarships and research funding. Dr. Schmit works with a Board of 12 Directors including HR professionals and academic professors to set the strategic direction of the Foundation. He also leads a staff of six professionals who carry out the operations of the Foundation. Dr. Schmit was previously the Vice President of Research for SHRM. In total, he has been with SHRM for nearly six years and has 25 years of prior experience in the field of human resources.
Dr. Schmit is a fellow in both the Society for Industrial and Organizational Psychology and the American Psychological Association. He is also certified as a SHRM Senior Certified Professional (SHRM-SCP).
Dr. Schmit graduated from St. Norbert College in DePere, Wisconsin with a B.A. in psychology and a minor in personnel administration. He began his career in the early 1980’s, first as an HR intern during college, and then, after graduation, as a generalist at a mid-sized health insurance company, a subsidiary of Lincoln National, in Green Bay, Wisconsin. In 1990, Dr. Schmit returned to school and earned a Ph.D. in Industrial and Organizational Psychology from Bowling Green State University graduating in 1994. Dr. Schmit continued on the education track as an Assistant Professor of Management at the University of Florida. He taught courses in HR, organizational behavior and statistics. As an academic, Dr. Schmit published over 25 research papers on HR related topics. Dr. Schmit simultaneously belonged to a small HR consulting group in the Management Department where he got his foothold for the next step of his career. In 1997, Dr. Schmit began a full-time consulting career. He started as an internal consultant with Payless ShoeSource where he was the Manager of Development and then as an external consultant with the firms Personnel Decisions International (PDI), SHL, and APTMetrics over a span of 14 years. At PDI, Dr. Schmit progressed to the role of Vice President of Assessment Solutions, a practice area at the company headquarters in Minneapolis, Minnesota that specialized in the development and implementation of selection assessments and tests. In 2002, Dr. Schmit moved to Boulder, Colorado to take on a new role as a Senior Testifying Expert with SHL. In this role he served as expert witness for employment discrimination cases. He wrote reports for the court and testified in court proceeding describing employer practices as compared to legal guidelines, professional standards, and industry best practices. Topic areas included personnel selection, promotion, training and development, performance management, compensation, organizational culture and general management practices. Dr. Schmit joined APTMetrics in 2005, where he continued as an expert witness, but also led the Western Region HR consulting practice of APTMetrics. In early 2010, Dr. Schmit joined SHRM to give back to the HR profession. He began by leading the SHRM Research Department and was then promoted to Executive Director of the SHRM Foundation in 2012. He believes that any HR professional, including himself, can engage with the SHRM Foundation as the ultimate way to leave a legacy for the profession. Whether it is as leader of the organization, serving on the Board, sponsoring a scholarship, publication or event, volunteering to judge scholarship or grant applications or just contributing monetary donations, the SHRM Foundation becomes stronger and better able to meet its mission when HR professionals step up to give back. www.HRProfessionalsMagazine.com
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UA Fort Smith UA Fort Smith Center for Business and Professional Center forDevelopment Business and Professional Development PO Box 3649 PO Box 3649 5210 Grand Avenue 5210 Grand Avenue Fort Smith, AR 72913-3649Fort Smith, AR 72913-3649
October 14 in Fort Smith
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1 Sunshine Bartlett, PHR, SHRM-CP, President of the Western Arkansas Human Resource Association, welcomed attendees to the 2015 WAHRA Leadership Conference at the University of Arkansas in Fort Smith. 2 Dr. Kim Gordon, EdD, SPHR, SHRM-SCP, is VP of Programs and Education for the WAHRA Chapter. Dr. Gordon is with the UAFS Center for Business and Professional Development. 3 Sherry Johnson, SHRM Field Representative, spoke on “SHRM Certification: What’s in It for Me.” 4 Cynthia Thompson, MBA, SHRM-SCP, SPHR, was the closing general session speaker. Her topic was “Enhancing Your Strategic Leadership Skills.” 5 Doug Strickel with International Paper in Memphis discussed “Leadership That Makes a Difference.” 6 Brad Owens and Joe Lammel with Lockton Companies, Memphis, spoke on “ACA 2015 Reporting Requirements” and “Workforce Analytics.” 7 Dr. Kristin Tardiff, with the University of Arkansas at Fort Smith spoke on “Evolution of Global Leadership.” 8 Scott Foster spoke on “Trends in Benefit Designs.” He is with Wellco Corporation in Royal Oak, MI. 9 Mary Kelly, PhD, Commander, US Navy, from Fort Collins, CO, was a general session speaker. Her topic was “Master Your World: Ten Executive Leadership Strategies to Improve Productivity, Profits, and Communications.” 10 Rickie Smith with Cross, Gunter, Witherspoon & Gulches, was an exhibitor. 6
www.HRProfessionalsMagazine.com
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6th Annual
Human Resources & Employment Law Fall Conference Presented by: THE WEST TENNESSEE SOCIETY FOR HUMAN RESOURCE MANAGEMENT In coordination with: THE LAW FIRM OF RAINEY, KIZER, REVIERE & BELL, P.L.C.
Tuesday, November 3, 2015 Carl Grant Event Center, Union University 1050 Union University Dr., Jackson, TN 38305
Join us for an informative day where you will explore crucial 1HR compliance topics. Take advantage of our impressive showcase of HR-related exhibitors. Door prizes and more. Register Now!
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PROGRAM: 7:30 am
Registration, Networking, and Visit Exhibitors
8:00 am
Welcome Dorothy and Toto too! We’re Not in Kansas Anymore! - FLSA/DOL Update Review of proposed new regulations affecting overtime and new independent contractor guidance which have the potential to greatly impact the workplace.
8:20 am
9:20 am 9:40 am
Flying Monkey’s Break and Visit Exhibitors 3 4 Break Out Sessions
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A. There’s No Place Like Home: Employees In the Military Learn best practices when assisting employees in the military. B. Lions, Tigers, & Bears, Oh My! Union Avoidance Learn legal strategies to avoid unions in your workplace. 10:40 am 11:00 am
12:00 pm 12:50 pm
2:20 pm
Lollipop Guild Break and Visit Exhibitors Watch Out for Cyclones: Employment Law Update An informative review of recent federal and state legislation, regulations, and court rulings impacting HR that could blow you away. 7
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Munchkinland: Lunch and Visit Exhibitors Follow the Yellow Brick Road of Experience: Case Studies By applying employment laws to real life situations, using an interactive approach focused on case studies, you will learn to click your heels together and better apply legally defensible best practices in the workplace.
2:30 pm
Courage Break The Wonderful Wizard of HR “If I only had a brain!” Test your knowledge of general HR issues using the format of the Jeopardy television game show.
4:00 pm
9 Prize Drawings Click Your Heels: Closing Remarks and
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1 Amy West, President of WTSHRM, welcomed attendees to the Conference. 2 WTSHRM 2015 Board of Directors (L-R) John Carbonell, Past President, Jennifer Howell, VP Membership, Rita Alexander, Communications Chair, Jane Mansfield, Secretary, Donna Dickinson, Treasurer, Anna Higgs, Certification Chair, Amy West, President. 3 Rob Binkley and Matthew Courtner presented, “We’re Not in Kansas Anymore! – DOL/FLSA Update. 4 and 5 John Burleson and James Thompson spoke on “There’s No Place Like Home – Employees in the Military.” 6 Michael Mansfield and Bob Binkley’s presentation was, “Lions, Tigers, & Bears, Oh My! – Union Avoidance. 7 Latosha Dexter and Geoffrey Lindley presented case studies. Their session was called, “Follow the Yellow Brick Road of Experience.” 8 Jeopardy panel (L-R ) Jennifer Howell, Yvette Forrest, Craig Butler, Jeff Autry. 9 Exhibitors line up to announce door prize winners. 10 Rainey Kizer attorneys (L-R) Rob Binkley, James Thompson, Dale Thomas, Matthew Courtner, John Burleson, and Michael Mansfield.
www.HRProfessionalsMagazine.com
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Holier than Thou: Do Religious Employers Have the Right to Discriminate Against Employees?
By GABRIEL P. MCGAHA
C
onsider this parable: Mary, a paid Sunday school teacher desperately wants to have a child. Her physician advises her to begin undergoing IVF treatment to give her and her husband the best chance of conceiving. After meeting with the head parishioner to request time off for the procedure, the teacher is summarily terminated. The reason: the church believes that using IVF violates its tenets. Does the teacher have a viable claim against the church for employment discrimination?
She hast not a prayer for relief. Although the Pregnancy Discrimination Act (which is part of Title VII) prohibits employers from discriminating against women "on the basis of pregnancy, childbirth, or related medical conditions," a church is generally free to discriminate against a “ministerial” employee, even if the discrimination would be otherwise prohibited. The U.S. Supreme Court unanimously recognized this “ministerial exception” in Hosana-Tabor Evangelical Lutheran v. EEOC, 132 S. Ct. 694 (2012), finding that, based on the Free Exercise Clause of the First Amendment, a religious organization has an absolute freedom to decide who may carry out its mission. While the Hosana-Tabor Court did not lay out a precise definition for who 10
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may qualify as a “ministerial employee” for purposes of the exception, factors that it considered were: (1) the employee’s title; (2) whether the employee was required to undergo significant religious training to qualify for the position; (3) whether the employee held herself out as accepting a call to religious service; and (4) the religious functions performed by the employee. The Court determined that as long as the employee qualifies as a “ministerial employee,” a religious organization has a right to discriminate for employment purposes.
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ow consider a different parable: Ruth visits a Baptist church seeking employment as a custodian. After conducting a pleasant interview with her, the pastor of the church decides that Ruth is just right for the job. At the end of the interview, the pastor asks Ruth to sign an acknowledgment stating that she will uphold the tenets of the Baptist Church. Ruth refuses to sign the acknowledgment and proceeds to inform the pastor that she is a practicing member of the Methodist denomination of the Christian Church. Does the church have the right to refuse to hire Ruth because she is not Baptist?
It dost.
Most prudent employers are keenly aware that Title VII of the Federal Civil Rights Act prohibits employers having at least 15 employees from refusing to hire or fire someone on the basis of race, color, national origin, gender, or religion. The federal statute, however, contains a specific exception (42 U.S.C. § 2000e-1(a)) that exempts religious organizations from the prohibition against discriminating on the basis of religion. In other words, religious organizations can discriminate against employees on the basis of religion. This freedom to discriminate goes beyond the ministerial exception recognized in Hosana-Tabor because it applies to all employees, not just clergy or those serving in religious positions. Thus, a church can require its janitors, cooks, receptionists, and any other staff to be not only of a particular religion but also of particular denomination of a religion, even though there is no religious function related to the employees’ duties. In addition to the general ability to discriminate on the basis of religion, religious employers often require employees to sign "mission statements" as a condition of employment. An employee's failure to adhere to the statement’s provisions, such as not becoming pregnant out of wedlock, can form the basis of a legal termination. The practical effect of allowing religious organizations to discriminate against employees on the basis of religion is that these employees are essentially bound by their employer’s religious views, notwithstanding the employees’ own beliefs. This general principle has even been applied to corporations with religious owners, most notably in Burwell v. Hobby Lobby, wherein the U.S. Supreme Court held that the owners of Hobby Lobby, a national craft store chain, were exempted from certain provisions of the Affordable Care Act and were, therefore, not required to provide insurance coverage to their employees for contraception. (Note: the Supreme Court is scheduled to hear additional requests for exemptions in Zubik v. Burwell, in the upcoming term).
discriminate based on membership in a protected class other than religion and are properly documented and presented to prospective employees before hiring decisions are made. These employers may also wish to require prospective applicants to sign a statement indicating that he/she has read and understood the rules, agrees with all of them, and intends to abide by them. Once an employee is hired, the organization should also consider reiterating its mission in an employee handbook, which the employee should sign. In the event of a dispute, these steps will serve not only as evidence of the organization’s commitment to a particular religious doctrine, but will also show the employee’s agreement to adhere to it. Even after taking these steps, it is imperative that religious organizations be uniform in their application of their religious tenets on employees who serve a non-religious function. An otherwise legal employment decision can, nonetheless, result in liability if a religious employer fails to apply its religious tenets equally among similarly situated employees. Finally, it is important to note that there will be subtle distinctions in this area of law depending on jurisdiction. Religious organizations should consult an attorney to determine their rights and obligations as these relate to their employees and to make sure their employment policies are clear and appropriately disseminated.
Gabriel P. McGaha, Attorney Fisher & Phillips LLP gmcgaha@laborlawyrs.com www.laborlawyers.com
SISKIND SUSSER PC
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he last parable: Judith applies for a position as a secretary at a local church. The church, however, adheres to a religious tenet that does not allow women to be paid employees. Should the church inform Judith that it will not hire her because of her gender?
It shall not. It is important for religious organizations to be aware of the limitations on Title VII’s religious staffing protection. While a faith-based organization is free to hire only staff who share its religious beliefs, the organization may not discriminate on the basis of race, color, national origin, or gender.
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The Revelation: A religious organization’s right to discriminate against current and prospective employees can raise complex legal questions. To reduce the likelihood of civil rights liability, these organizations should make sure that their respective missions or statements of faith do not www.HRProfessionalsMagazine.com
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Adapting to an Ever-Shifting TALENT LANDSCAPE By SUSAN HANOLD
In recent conversations with executives, two related concerns about attracting and retaining top talent keep cropping up: Managing the dynamics of a multi-generational workforce and sustaining a corporate culture that motivates and retains employees. More and more these two issues are intersecting and affecting the guidance and decisions of today’s HR leaders. Attracting, developing and retaining the right talent are key for the competitive battles your company faces every day. No one knows better than you the impact of those changing demographics and the ways that members of today’s multi-generational workforce are defining success on their own terms. Part of that definition has employees seeking employers that align with their own beliefs. That’s why creating a culture that helps manage, motivate and retain employees will help you win in the marketplace.
Recruiting a Multigenerational Workforce As workforce demographics continue to shift on a global scale, HR leaders are confronted with the challenge of enticing younger workers into their folds while managing a mature workforce that’s sitting on the fence between retiring and extending their careers. Younger, more diverse workers are coming of age and seeking to contribute to a company’s success while they advance their careers. Employees in the later stages of their careers are looking to move on to the next phase of their lives, or stay and share their years of expertise and skill. Recruiting strategies have to be tailored to the different priorities, needs and desires of each age demographic. For instance, Millennials are more likely than other generations to care about company ethics and volunteer policies when making a career decision. An estimated 55% of Millennials say a company’s volunteer policy affects whether they will accept a job. Members of Generation X tend to be focused on developing a stable career with a well-defined path through the organization. While many Baby Boomers are approaching and reaching retirement age, large numbers of this generation have a desire to stay active in the workforce – even in part-time or consulting roles to help maintain “organization knowledge” and pass the torch to younger workers.
Common Ground Despite the differences between members of various generations, there are key similarities recruiters can use to highlight points of connection and make it easier to create messaging that will be effective across generational lines. Strong recruiting strategies will strike a balance between similarities and differences to highlight an employer brand that focuses on a harmonious and productive working environment. Many of the similarities between generations center on interpersonal relationships. Millennials and Baby Boomers both place a lot of emphasis on mentoring relationships – Baby Boomers know they have a lot to offer and 75% of Millennials are interested in having a mentor. 12
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In 2015, Millennials surpassed Gen Xers to become the largest generation in the U.S. workforce. And while they often get blamed for a whole range of changes (good, bad and indifferent) in the modern workplace, studies show that Baby Boomers, Gen Xers and Millennials' priorities largely align on key job-related issues: fair treatment, opportunities to grow, flexible work hours and measurable impact of their work. That shouldn’t make for an impossibly high bar to hit, yet it's clear from other recent research – including a Gallup® study on employee engagement – that employers could be doing much better. The media has focused on the Millennial group and many companies are now concerned about finding the right talent to fill key roles and provide specific skills. Increasing demand for certain skills along with decreasing supply is shining a spotlight on experienced employees and even employees that have retired. SHRM® Aging Workforce Research Initiative suggests that some organizations may look to retain their 55-and-older segment of the workforce as a way to deal with skills shortages. Another shared priority between generations is an employer’s corporate culture and its ability to meet the needs of employees who want to identify themselves with a company that has a well-known, high-quality reputation.
Culture Matters Organizational culture has always been a vital issue to leadership, but recently, the discussion about the true value of it has found traction. A recent article in Forbes®, titled “Culture: Why It's The Hottest Topic In Business Today,” points out that in a world of commoditization, automation and rapidly changing technology, sustaining corporate culture in new markets is being viewed as a competitive advantage. Many of the best candidates you'll attract will want to work with you because they already understand your company and your culture, and brand is clearly defined. Designing compensation and benefits programs that meet the needs of multi-generational teams is critical to defining and enhancing a company’s culture. Several large companies are making dramatic shifts in their performance management processes, and that’s causing HR leaders to clarify the best way to measure and reward employees for their work. Only eight percent of global organizations believe their performance management process is worth the time they put into it, according to the 2014 Deloitte® Consulting Global Human Capital Trends Report. This shows how important it is to implement a performance management approach that is woven into day-to-day work and creates a high-performance culture. Pay is important, but culture may mean more. Compensation and benefits are always ranked highly by employees when evaluating satisfaction with their jobs. However, there is increased evidence that corporate culture and relationships with co-workers and managers are held in higher esteem by workers. Nearly three of four respondents to SHRM’s study 2015 SHRM Employee Job Satisfaction and Engagement Report: Optimizing Organizational Culture for Success indicated that respectful treatment of employees at all levels was “very important” when ranking job satisfaction. Today’s HR leaders are becoming acutely aware of the connection between managing a multi-generational workforce and sustaining a corporate culture that motivates and retains employees. As these two issues continue to intertwine, the strategic guidance HR leaders provide business decision-makers will have to account for this shift in the talent landscape.
Susan Hanold, PhD VP, ADP Strategic Advisory Services susan.hanold@adp.com www.adp.com
The SHRM Foundation Fostering the development of HR professionals of today through scholarships and HR professionals of tomorrow through research By BAILEY YEAGER
Scholarships for HR professionals and students The Society for Human Resource Management (SHRM) Foundation is committed to helping HR professionals realize their educational goals. The SHRM Foundation awards more than 200 scholarships annually, providing students and HR practitioners opportunities to earn certifications and pursue graduate or undergraduate degrees. The SHRM Foundation believes that by awarding scholarships to rising HR professionals we are shaping the HR profession starting with the person. Recipients of student scholarships are selected based on their commitment to the HR field, student chapter involvement and their academic achievement. Student scholarships provide resources for emerging HR professionals seeking to join the HR workforce and make an impact on their profession.
“ I financed my undergraduate and graduate degrees through loans, and the SHRM Foundation scholarship helped relieve that burden. Student loan debt had crippled many of my peers and has deterred others from pursuing graduate degrees. I feel it is my duty to help future HR leaders in the same way the SHRM Foundation helped me.” Reyna E. Martinez, M.H.R.M., student scholarship recipient In 2016, the SHRM Foundation will award 185 scholarships to assist HR professionals seeking SHRM-CP or SHRM-SCP certification. This pledge is a 68 percent increase in a single year. Many recipients are unable to bear the financial burden of purchasing the learning system and paying exam fees. Many don’t receive funding from their employers to pursue SHRM certifications and have faced personal hardships. The SHRM Foundation seeks to empower these HR professionals by providing them the opportunity of achievement for the betterment of their organizations and families.
“ Shelby is my beautiful 12-year-old special needs daughter. She cannot communicate, feed herself, walk without assistance or be alone – EVER. I am her voice. I am her advocate in a world of potential hazards…I love my job, I love my career, and I love that in every face I help I can see a little bit of Shelby.” Jennifer Williams, 3M certification scholarship recipient Through education and certification scholarships, the SHRM Foundation is able to positively affect the lives of hundreds of HR professionals every year. HR professionals and students from all five regions of the U.S. receive scholarships—28 scholarships were awarded to those from the southeast region in 2015. The impact of the SHRM Foundation is wide-reaching— offering scholarship opportunities for students and professionals across the United States. Scholarship awards provide the opportunity to pursue professional goals not only for HR professionals but for chapter and state council members as well. HR professionals are able to help through serving on the SHRM Foundation Board, sponsoring a scholarship, publication or event, volunteering to judge scholarship and grant applications or contributing monetarily. For those who are able to sponsor a scholarship, this opportunity presents a way to give back to the profession.
“ There is no profession that has the potential to impact every worker’s selfactualization…through career development, personal fulfillment, family welfare, employer success and social progress. Contributions, sponsorships and scholarships through the SHRM Foundation offer a means of contributing to these very tenants.”
Actionable cutting-edge research In 2013, the SHRM Foundation introduced its new Thought Leaders Initiative to inform “what’s next” in the HR profession. In collaboration with the Economist Intelligence Unit (EIU), the SHRM Foundation developed a multi-year themed approach to identifying key trends in business that will likely affect the HR profession in the next five to 10 years. The three themes identified through a rigorous input process were: The Evolution of Work and the Worker (2014) Engaging and Integrating a Global Workforce (2015) Use of Talent Analytics for Competitive Advantage (2016) The Evolution of Work and the Worker report examines the globalization of business, changing demographics and changing patterns of mobility, and how these factors will continue to change the nature of work and the worker. Research from the 2014 theme suggests that the shifting demographics are creating a more diverse, more female, urban and older workforce. The Evolution of Work and the Worker also reveals that employee values are changing, especially among the Millennial generation. The evolving workforce requires HR professionals to adapt to the changing worker profile, learn and understand subtleties of workers’ qualifications, and retain and engage the changing workforce. The report titled Engaging and Integrating a Global Workforce suggests that cross-border expansion creates new challenges in the evolving, global workforce. The research shows that the boost in global trade and the expansion of transnational companies have resulted in cross-cultural workforces. Skilled workers from emerging countries will improve productivity while seeking higher wages across borders. The report also notes that the use of remote and temporary workers increases flexibility and allows for labor needs to be met, but, in turn, it increases demands on management. Cultural integration and clashes and unrest will continue to grow globally, at both societal and corporate levels. In 2016, the SHRM Foundation will continue to work with the EIU to study the last theme, Use of Talent Analytics for Competitive Advantage. Talent shortages continue to grow globally, requiring HR to become the provider of human-capital analytics offering insight for strategic business decision-making. Reports on each of these themes and the associated trends and implications, along with the articles, videos and infographics from the SHRM Foundation collaboration with the EIU, are complimentary and found on the SHRM Foundation website. The future-focused research conducted with the EIU provides the Foundation with insight on the direction the HR profession is trending. The SHRM Foundation then funds research to develop evidence-based practices to meet the needs of HR practitioners as new trends emerge. In any given year, the SHRM Foundation has about $1.5 million invested in ongoing research. The SHRM Foundation website contains a variety of complimentary resources for HR professionals—executive briefings, research reports, effective practice guidelines on emerging HR topics—addressing the needs of a range of HR professionals from generalists to executives.
Jim Schultz, retired HR executive, Chevron Corporation Each scholarship recipient has a different story—a different set of challenges to overcome. In turn, each SHRM Foundation donor has reason for contributing to the profession. The mission of the SHRM Foundation is realized through scholarships, academic research that informs the future of the workforce and thought leadership.
Bailey Yeager, M.P.S. Senior Marketing Specialist SHRM Foundation bailey.yeager@shrm.org www.shrmfoundation.org www.HRProfessionalsMagazine.com
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Proposed Change to the Fair Labor Standards Act
Increasing the Exempt Status Wage Threshold By JOE MEYER, SPHR, CCP
If approved, proposed rule changes released by the Department of Labor (DOL) will raise the salary threshold at which an employee is eligible to be classified as exempt from $23,660 to $50,440.1 This means an employee who is currently exempt and earning a fixed salary of $970 or less per week would be disqualified from the exempt status and therefore entitled to overtime pay.
Three-Part Test Determines Exemption Status The DOL manages the Fair Labor Standards Act (FLSA), which outlines the regulations that allow employers to decide if an employee can be classified exempt (paid a fixed salary with no overtime pay) or non-exempt (paid an hourly wage and eligible for overtime pay). So how does an employer know whether an employee should be eligible for overtime pay? The DOL provides employers with a three-part test that helps determine exemption status.
All employers are subject to an audit by the DOL to ensure their employees and their jobs satisfy these three tests. If the DOL determines an employer has violated the regulations by misclassifying an employee as exempt, the employer may be fined as much as $1,100 per violation and subject to up to three years of back overtime wages, payable to all misclassified employees (both current and former).2 The DOL has the option to pursue criminal prosecution for willful repeat violators.
Part 1: Salary Basis This test is ensures the employee is regularly paid a predetermined amount each pay period (salaried). The amount cannot decrease due to the quantity or quality of the employee’s work.
Part 2: Salary Threshold Qualifier This test ensures the employee is paid at least $455 per week, or $23,660 per year. To be exempt, an employee must earn at least this much on a salaried basis.
Part 3: Primary Job Duties The DOL created five broad job categories that could qualify for exempt status: ❖ Executive (management roles with two or more direct reports) ❖ Administrative (for example, tax accountant or senior auditor)
Why Change the Rules? On March 13, 2014, the DOL received a presidential memorandum urging it to “update, modernize, and simplify” the current FLSA rules. The DOL proposed increasing the salary threshold from $455 to $970 per week, or $50,440 annually. Additionally, the proposed threshold will be indexed annually using the US Consumer Price Index or the 40th percentile of earnings for all full-time salaried workers (yet to be determined.) Consequently, with the updated law, each year the salary threshold requirement will be updated automatically. This is not the current practice under existing law. No changes have been proposed for the salary basis or job duties tests.
❖ Professional (for example, electrical engineer or lawyer) ❖ Outside sales (at least 80 percent of time is spent selling while away from the office)
Who Will Be Affected?
❖ Certain computer/technology jobs (for example, computer programmer or business systems analyst)
According to the DOL, nearly 5 million white collar workers would be affected by the proposed rule change.3
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Any employer who currently classifies an employee as exempt AND the employee earns less than the weekly threshold of $970 per week may soon be required to start paying the employee overtime and change the employee’s status to nonexempt. Some examples of roles that are likely to be affected include: ❖ Food service managers/supervisors
Legal Challenges are Coming at HR Professionals from Every Direction
❖ Retail sales managers/supervisors ❖ Non-profit managers/supervisors ❖ Customer service representatives ❖ Legal support workers ❖ Office and administrative support workers ❖ Social workers ❖ Counselors
When Will the Updated Rules Take Effect? Although no formal timetable exists for release of the updated rules, final rules are expected sometime in late 2015 or early 2016. The DOL collected comments from employers through September 4, 2015. These comments are being evaluated by the DOL and may or may not affect the final rules.
How Employers Can Prepare First, employers should ensure exempt employees are appropriately classified under the current law, using the $455 threshold ($23,660 annually). If you need assistance properly classifying your employees, the Lockton Compensation Practice provides FLSA evaluations and recommendations for our clients. Next, employers should immediately identify any employees who would be affected by the proposed rule changes (those currently in an exempt status and earning a salary of less than $970 per week) and begin tracking the hours worked by these identified employees. Lockton’s Compensation Practice provides this analysis to our clients for a nominal fee.
That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice individualized for your specific needs. This is why you should know the employment-law attorneys at Rainey, Kizer, Reviere & Bell PLC. For over 30 years, our AV-rated firm has advised businesses, nonprofit organizations, and government agencies on all aspects of employment law. To learn more, please call.
Finally, employers should consider all options and prepare a strategy in the event these rules are adopted. The Lockton Compensation Practice performs financial modeling and can develop a strategy to help you mitigate the cost of the proposed rules changes. REFERENCES 1 United States Department of Labor. Notice of Proposed Rulemaking: Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees. Document 80 FR 38515. Washington: Federal Register, 2015. Federalregister.gov. Web. 24 September 2015. 2 Wages and Hours Worked: Minimum Wage and Overtime Pay. Department of Labor. Department of Labor, September 2009. Web. 24 September 2015. 3 Notice of Proposed Rulemaking: Overtime. Department of Labor. Department of Labor, 6 July 2015. Web. 24 September 2015.
Brad Owens
Lockton’s Memphis Office 901 757 6901 bowens@lockton.com
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Wimberly Lawson Attorneys
Save Savethe theDate Date- -November November3rd 3-5,& 2016 4th atatthe theDowntown Knoxville Marriott Marriott,Knoxville Knoxville
36th Annual LABOR & EMPLOYMENT LAW UPDATE CONFERENCE In Knoxville, Tennessee, on November 5 - 6, 2015
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1 Ron Daves welcomed attendees to the Conference. 2 Vallie Smith Collins was the keynote speaker at the Thursday General Session. Vallie was a passenger on United Airlines Flight 1549 that landed on the Hudson River January 15, 2009. Vallie resides in Maryville with her family. 3 James W. Wimberly, Jr. spoke at the Thursday morning General Session. He provided “The Year in Review.” 4 Mary Moffatt Helms discussed “Cyber Security, Cyber Crime and Employee Data” at the Thursday morning General Session.
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5 Fredrick R. Baker, editor of The Tennessee Workers’ Compensation Handbook, presented “Lessons Learned From Year One of the Tennessee Court of Workers’ Compensation Claims” at the Thursday morning General Session. 6 T. Joseph Lynch, III and Jeffrey G. Jones spoke on “Violence in the Workplace/Crisis Management: Effective Preparation” in a Thursday Breakout Session. 7 Fredrick J. Bissinger spoke on “Strategies for Minimizing the Negative Effects of Unconscious Bias in Employment Decision-Making” during the Thursday morning General Session. 16
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8 Over 500 HR professionals attended the Conference. 9 Edward H. Trent and Ashley R. Griffith presented the “Impact of Social Media in the Workplace” during the Thursday afternoon Breakout Session. 10 Kelly A. Campbell discussed “HR Audits: What’s the Big Deal?” at the Friday morning General Session.
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11 Mary Dee Allen presented the “TN Online Privacy Act” at the Friday morning General Session. Mary Dee also serves as the Legal and Legislative Chair for the Tennessee SHRM State Council. 12 Susan S. Davis discussed “I-9 Internal Audits: An Ounce of Prevention” at the closing General Session on Thursday. 13 M. Lee Daniels, Jr. and Catherine E. Shuck presented “Sex, Gender, Same-Sex Marriage and Transgender Employees: What Does it All Mean?” at a Thursday afternoon Breakout Session. 14 “Discipline and Discharge: Handling the Tough Calls with Confidence” was G. Gerard Jabaley’s topic in the closing General Session on Friday.
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15 Howard B. Jackson presented “What to Look for From the NLRB” in the closing General Session on Friday. 16 William R. Seale was the closing speaker for the Thursday closing General Session. He discussed “The Fab Five 2015.” 17 J. Larry Stine provided an “OSHA Update: Reporting Injuries, Hazcomm, Silica Regs and Citations” at the Friday morning General Session. 18 An “Affirmative Action/OFCCP Update” was presented by Jerome D. Pinn at the Friday morning General Session. www.HRProfessionalsMagazine.com
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Job Descriptions Compliance Heightens with Proposed DOL FLSA Regulations By BLAIR and BRUCE JOHANSON
When you hear the acronym FLSA, it is not a favorite term that rates as high as a two week vacation. However, they are similar as they both require proactive planning so the outcome will be positive. The proposed FLSA changes following President Obama’s directive to expand the eligibility for more employees to receive overtime pay is imminent. The World at Work organization estimates 6,000,000 exempt salaried U.S. employees could become non-exempt hourly workers. Based on several sources, the salary test and primary duties test for determining whether a job is classified as exempt or non-exempt will be impacted. The current annual exempt salary level of $23,660 will probably be increased to $50,440 or $970 a week. The primary duties test is projected to require that at least 50% of the essential duties be considered as exempted level duties.
Job duties and tasks should be reviewed to determine what positions may be at risk based on percentage of time and frequency for each primary/essential duty. Collaboration with managers and employees that know and perform the job can and should weigh-in to confirm the makeup and requirements of the job. In the future, there is a strong likelihood that the Department of Labor will actually want to observe an employee in their position to verify what the job description states compared to actual performance. Making sure that the job description is right and matches with what the employee is doing will be a normal function of the company’s compliance efforts. In addition to the proposed DOL FLSA regulations, organizations are being required to implement better employee-related programs and documentation due to changes in existing laws and regulations and other new legislation. The American with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) and their recent amendments plus the new Lilly Ledbetter law are causing organizations to move the priority of creating and maintaining job descriptions from the back burner to the front burner. The ADA is the main piece of legislation impacting the precedence of job descriptions due to the fact that any organization, without exception, with 15 or more employees is required to have a listing of duties, skills and job requirements for each current position. The law does not specify that each listing be classified as a job description, but if you are audited by an outside government agency such as the EEOC or the OFCCP, they will ask to see your job descriptions. The benefits of creating and maintaining comprehensive and accurate job descriptions go well beyond the current legal requirements. Some of the benefits include:
Though the Department of Labor has decided on changes to the FLSA duties test in the current proposed regulations, they are inviting the regulated community to comment on questions regarding proposed changes to the duties test. In general, the DOL is seeking comments on whether employees should spend a minimum amount of time performing their primary duty in order to qualify for the overtime exemption and what should be the minimum percentage to qualify. The anticipated final regulations should be issued during the first quarter of 2016 with an effective date close to June, 2016. Human Resources and Compensation professionals need to anticipate and prepare for the proposed DOL FLSA regulations by evaluating internal job classifications and job duties for all positions that fall below the proposed salary test. This will require greater emphasis on job descriptions content reviews and compliance. 18
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• Provide a general guideline of a job/position • Parts can be used to create an internal job posting or external posting/ad • Utilized as a basis to ask questions during interviews • Ability to review job descriptions as a part of the on-boarding/orientation process • Offer a means to compare an individual's actual performance to the job description • Used to differentiate one position over another - job value/rating and compensation level • Allow employees to describe their job in a written format; clear up any misunderstandings The main components of a job description include:
Basics - Organization Name, Position Title, Department, Supervisor's Title, Date, Physical Location and; Exempt/Non-Exempt Classification. Purpose Statement - One sentence to a couple of paragraphs describing the overall main responsibility and accountability of the position. Primary/Essential Duties and Responsibilities Core or main aspects of the position (usually 10 to 15) that are expected to be completed on a daily, weekly, monthly, yearly and irregular basis. The last item on the list should include the following statement, "Any other task or duty as assigned or required". Knowledge and Skill Requirements - The minimum level of education, work related experience, certificates, licenses and/or registrations; any required language, communications, math, critical thinking, mental demand, problem solving, equipment/computer usage, etc. necessary to be successful in the position. Physical Demands and Work Environment This includes the physical aspects (walk, talk, sit, stand, touch, climb, lift, sight, etc.) of the position and the environment (normal office, warehouse, elevated, hazardous, potential exposures, etc.) that the position operates in. The normal process to complete an ADA Compliant job description is as follows: 1. E mployee completes a blank position analysis questionnaire (PAQ) 2. C ompleted questionnaire is reviewed and revised by supervisor/manager 3. F inal review is completed by the HR group for objectivity, accuracy and compliance Fortunately, the process to complete an ADA compliant job description has just gotten easier with the various software job description writing programs. Web-based programs are very efficient and a cost-effective approach to creating job descriptions in minutes instead of hours. Look for job description writing programs that offer electronic collaboration features for greater participation and input from managers, supervisors and employees. The days of having job descriptions in a binder collecting dust or sitting on the back-burner are over. This mature human resources tool is gaining greater internal and external visibility, worth and risk if not managed professionally. The stove-top timer is ticking and the summer of 2016 will be here soon enough when the DOL comes seeking more employee overtime payroll taxes. Bruce and Blair Johanson, MBA’s Principals of Johanson Group and DBSquared, LLC
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There and Back Again – Rehire Rules After the ACA By LAURA K. CLAYMAN
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addition to creating the Employer Shared Responsibility (ESR) mandate on Applicable Large Employers (ALEs), the Patient Protection and Affordable Care Act (ACA) also limited an employer’s discretion to classify a returning employee as a rehire or as a new hire. Now, an individual hired after a break in service of less than 13 weeks is a rehire. An individual rehired after a break in service of at least 13 weeks is a new hire. (Note: the allowed break in service increases to 26 weeks for educational organizations to account for scheduled academic breaks.) The determination of whether an individual is a new hire or a rehire impacts how an employer must evaluate the returning employee’s benefits eligibility, and ultimately determines when the employer must offer healthcare coverage to avoid penalties under the ESR mandate. A returning employee with a break in service of less than 13 weeks will be considered as continuing his or her employment. The first step in tackling most ACA issues is to identify how an employer determines who is a full-time employee. The specific consequences of the new rehire rules depend on an employer’s chosen measurement method to determine full-time status. An employee is classified as “full-time” if he or she works at least 130 hours per month (or 30 hours per week). The IRS provides only two ways an employer can measure full-time status: the monthly and the look-back measurement methods. The monthly measurement method counts an employee’s actual hours of service each month. If the employee works full-time hours, he or she is classified as a full-time employee and offered coverage after undergoing a company’s designated waiting period (up to 90 days). The look-back measurement method averages an employee’s hours over a historical period of time (initial measurement period) to determine whether that employee should be classified as benefits eligible for a future period of time (the stability period). As far as healthcare benefits go, a rehired employee will step back in where he or she left off as follows: • Monthly Measurement Method: If the rehired employee satisfied a waiting period during his or her previous period of employment, the employer cannot require the returning employee to undergo an additional waiting period. Coverage must be offered the first day the employee is credited with an hour of service or the first day of the calendar month following resumption of services (if immediate coverage is not administratively practicable). • Look-Back Measurement Method: A rehired employee must be credited for hours worked during the most recent measurement/look-back period and offered immediate healthcare enrollment if the employee’s average hours worked or paid meet the full-time threshold. Conversely, if the returning employee is deemed to be a new employee, the ALE can again apply the established waiting period to the employee and delay the offer of coverage until completion, or place the employee in a new initial measurement period. Let’s look at an example: Employee Bob is hired by Company X. Company X uses the monthly measurement method and has a 60 day waiting period. Bob is offered 20
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coverage after 60 days and accepts. Six months later, Bob gets laid off. Two months later, business picks back up and Bob is rehired as a full-time employee. Under the ACA rehire rules, Company X must offer coverage by the first day of the calendar month without requiring Bob to complete another 60 day waiting period. What if Bob never accepted coverage in the first place? At least in terms of health insurance, Company X should still offer coverage on the first calendar day following the date of rehire, regardless of whether Bob initially declined. With the monthly measurement method, because eligibility for coverage is actually based on a month-to-month analysis, these employees are really regaining eligibility and have new election rights. Now, let’s take the same example, but change Company X’s measurement method to the look-back. Upon returning to the company, Bob would step back into the measurement or stability period that he was in when he initially separated from employment. If Bob had initially declined coverage for this stability period, Company X could rely on that declination and not offer coverage upon rehire. If Bob had initially elected coverage, Company X would offer the same coverage originally selected for the stability period. It’s the ACA – that means there are exceptions to everything! If an employee works for less than 13 weeks prior to the termination, an ALE may choose to use a “rule of parity.” Under the rule of parity, an employer may treat a rehired employee who has had a break of at least four weeks as a new employee if the employee’s break in service (with no credited hours of service) is longer than the employee’s period of service immediately preceding the break in service. For example, if an ALE uses a four-week rule of parity, an employee who works for five weeks and then has no credited hours for six weeks may be treated as a new employee. Many insurance carriers are playing catch-up to the ACA employer mandates. Enrollment forms showing date of hire lead to confusion when an employee is rehired. An employer should confirm with their broker that their plan documents reflect the new rehire rules and allow a rehired employee to re-enroll in the plan without undergoing the standard waiting period.
Laura K. Clayman, J.D. Client Resource Team Senior Advisor Certified PPACA Professional Regions Insurance, Inc. laura.clayman@regions.com www.regionsinsurance.com
“What is 6056 reporting? Am I supposed to be doing this now and what information am I supposed to be tracking?”
“I have three new hires coming on this month. How do I know if they are variable-hour versus full-time and when do I have to offer them benefits?”
Guiding You Through the Tough Questions Your business faces tough decisions every day when it comes to health reform – decisions that impact your benefits program, your employees, and your bottom line.
Let Regions Insurance’s ACA trained professionals guide you down the right path – because it’s our business to run defense for your business.
Tom Hayes
Katrina McKinney
Employee Benefits Practice Leader tom.hayes@regions.com 479-684-5259
Sales & Marketing Coordinator katrina.mckinney@regions.com 205-264-7177
www.regionsinsurance.com
The Coverage You Need. The Guidance You Trust.
Find Regions Insurance offices in these states: Alabama, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, South Carolina, Tennessee and Texas ©2015 Regions. Regions Insurance is an affiliate of Regions Bank. Products and services are offered by Regions Insurance, Inc., and underwritten by unaffiliated insurance companies.
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Making a list and checking it twice Hot holiday gifts for benefits managers By B LAKE ROGERS, JIMMY HINTON, CHRIS MENARD, and RICKY REYNOLDS
Why should the kids have all the fun? We think benefit managers like you have every right to make holiday gift lists, too. And to make sure our benefits workshop is ready to meet the demand, we recently sent our elves into the field to see what HR professionals are putting on their benefits wish lists. See how many of your most-wanted benefits gifts are hot items this year: • Ways to save money on benefits without cutting quality. This one never goes out of style and always fits perfectly. We don’t want to spoil the surprise when you open the box, but you’ve got choices and so do your employees. You can redesign your benefits package with a higherdeductible medical plan and fill in your employees’ financial exposure with a hospital confinement indemnity plan such as Colonial Life’s Medical Bridge product. That keeps premiums lower and more affordable for you and your workers. You also can move some benefits you’ve been funding to voluntary benefits, so your employees choose and pay for only those that best meet their unique needs. The result is more flexibility than an elastic waist after a big holiday dinner. • Help with health care reform reporting. This item can be harder to find and more expensive than a black market Cabbage Patch doll. We’ve evaluated several vendors that provide these services and can recommend a partner to meet your needs. The right expert can help you both with reporting and with ensuring your company is in compliance with ACA requirements. Think of it harnessing up as your own personal Rudolph to light the way through the health care reform darkness. • Easier benefits administration. If you’re one of those whose eyes roll when people talk about business slowing down before the holidays or in the summer, this is probably on your list. Benefits can be complex, but administering them doesn’t have to be. Look for a benefits partner that offers a full suite of online administrative services and the ability to connect seamlessly with your or another vendor’s enrollment system. • Benefits communication support. Unless you have time — and frankly, the expertise — to sit down individually with every employee on your staff and explain your major medical plan and all the other benefits you offer, and then help each person decide which options best meet his or her needs, this should be high on your list. Stuff some personalized benefits statement and salary illustrations, benefit booklets and a benefits learning center website (customized for groups as small as 50 employees) in that stocking, too. A top voluntary benefits partner can do all this for you at no additional cost to your business. Sometimes the best gifts really are free. • Turnkey enrollment services. Your benefits partner should be able to handle enrollment of your core and other benefits with a wide variety of methods, including one-to-one benefits counseling sessions, group meetings, call center enroll, self-enroll and even good old paper forms if need be. Put same-day enrollment status reporting on the list, too, so you know how the enrollment is progressing and which departments might need a nudge. Electronic data collection and reporting back to you wraps up the enrollment with a big red bow. 22
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• More options to stay competitive. A great benefits package is one of the best competitive advantages your company can have. The 2014 U.S. Worker Study released by Colonial Life and Unum showed a strong majority — 75 percent — of employees who rate their benefits package as “excellent” or “very good” also say their company is an “excellent” or “very good” place to work. You can let your employees create and customize their own benefits packages by offering them voluntary benefits. Premiums are affordable and convenient for employees to pay through payroll deduction, and there’s no direct cost to your company. • Simple, affordable wellness programs. Keeping employees healthy in the first place is the best way to control health and insurance costs — for your company and for your employees. Discount cards for health and wellness services, onsite flu vaccinations, and wellness services such as 24/7 nurse phone line, health risk assessments or wellness screenings are some of the programs your company may be able to find under the tree. Several types of Colonial Life coverage, such as cancer and critical illness policies, also include wellness benefits that pay for screening tests. These benefits not only make the annual cost of coverage even more affordable, they can help catch problems earlier when they’re easier to treat. • Expert, trusted counsel for questions. This one is our favorite. It’s why we’re here and what we love best about our business. Benefits are more complicated today than ever before and that’s not likely to change soon. There’s no need to go it alone when you can work with a benefits partner who values a long-term relationship that makes your company and your benefits program successful. To paraphrase that old shampoo commercial, when you look good, we look good. The list goes on, and you probably have your own ideas of the perfect benefits program — and we’d like to hear them. Get started on your wish list now, then give us a jingle. We’ll be glad to help you box up a great benefits program that’ll put a bigger smile on your face than a new pair of roller skates.
Blake Rogers Tennessee territory sales manager Colonial Life & Accident Insurance Company tblakerogers@coloniallife.com or 615-696-6672
Jimmy Hinton Mississippi territory sales manager Colonial Life & Accident Insurance Company jhhinton@coloniallife.com or 601-326-2954
Chris Menard Kentucky territory sales manager Colonial Life & Accident Insurance Company cmenard@coloniallife.com or 502-272-9664
Ricky Reynolds Arkansas/Oklahoma territory sales manager Colonial Life & Accident Insurance Company rcreynolds@coloniallife.com or 501-246-8979
ABOUT COLONIAL LIFE Colonial Life & Accident Insurance Company is a market leader in providing financial protection benefits through the workplace, including disability, life, accident, dental, cancer, critical illness and hospital confinement indemnity insurance. The company’s benefit services and education, innovative enrollment technology and personal service support more than 80,000 businesses and organizations, representing more than 3 million of America’s workers and their families. For more information, visit www.ColonialLife.com, www.facebook.com/coloniallifebenefits, www.twitter.com/coloniallife and www.linkedin.com/company/colonial-life.
The CASE for JOB EVALUATION By JENNIFER BLAKE
time. Our management team spent time brainstorming what we were “selling” (i.e. providing) our customers (i.e. patients and their families). Our initial thoughts revolved around health, health improvement, and wellness. We continued to dig deeper and we had to consider not all our patients would have improved health. Some would even die. As a team we realized what we were really selling was well-being. No matter a patient’s condition or prognosis we were there to make the experience as positive and comforting as it could be.
S
Knowing the underlying product or service your company provides customers helps defines your mission and, therefore, your ongoing vision. I’d like to suggest the process of job evaluation is a microcosm of this “why-do-we-exist?” exercise. Often a manager gets an idea for a new job without fully answering important questions to justify the job’s existence. As a result, the job is ill-defined and hard to fit into the organizational structure and price to market.
I took away an important lesson we were able to apply at the hospital where I was working at the
In an article entitled “Job Evaluation: Relevant, Robust, and Re-Imagined” (Workspan, Issue 9, 2015) the authors state, “Job evaluation provides valuable insight to management on what makes jobs of value to them. Market pricing does not.” Indeed, how can you market price a job if you’re unclear about the job’s value to your own organization?
everal years ago my COO and I attended a course at Disney University called “The Disney Approach to Orientation”. Disney knows its competitors can always build a bigger and better roller coaster. But bigger and better has not been Disney’s competitive advantage; knowing why they exist for their customers has. Disney has answered an existential question I think all businesses should answer: What are we selling? Disney’s answer: We sell happiness!
A good job evaluation process begins by answering the question, “Why does this job exist?” If you cannot answer that question definitively, stop and determine if this is really the job you need. A well-designed process focuses on the job, not on a person or people. Why is this important? Each time you add a job to your organization you’re adding a resource, a cost. Confusing jobs with people can cloud your best judgment regarding what’s in the organization’s best interests. The job evaluation process provides essential information for creating a strong job description that articulates a job’s main purpose; five to seven key accountabilities; the knowledge, skills, and abilities required for incumbents to be successful; the job’s scope and span of control; the physical requirements of job incumbents; and the working conditions. This important job documentation serves to direct your recruiting efforts and provides the criteria against which the job incumbents’ performance will be evaluated. If your organization doesn’t have a formal job evaluation process, consider the benefits and you may find yourself re-thinking your practice.
Jennifer Blake, CCP The Centre Group jblake@thecentregroup.com www.thecentregroup.com
DBSquared combines proven technology and seasoned expertise to help bring your total compensation management into perspective. We provide: DBCompensation® (built on the proven Job Evaluation and Salary Administration Program JESAP™ methodology) is a stateoftheart HR compensation management software application that efficiently combines internal knowledge and expertise with pertinent market information to streamline your compensation strategy and policies. Ultimately simple and elegant, DBCompensation is easily integrated into your business strategy and HRIS environment. Our proven methodology and process combined with thorough and intuitive software development ensure you'll never look back.
Helping clients envision new possibilities is a talented consultant's greatest asset. At Johanson Group, our combined 65 years of experience in all facets of business management enable us to offer the insight and direction that produce meaningful results.
DBDescriptions™ job descriptions software is the cornerstone of an efficient and aligned organizational design. Whether you need one job description or two hundred our database of descriptions has exactly what you need to adapt or create tailored descriptions for your business; all easily accessed through an intuitive webbased application. Utterly simple and efficient.
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We've helped organizations face the management challenges that come with a rapidly expanding staff and customer base. We also assist new business ventures map out their company's future, both strategically and operationally. Our signature approach is to listen and fully understand your company so that we can then partner with you to realize your own unique vision.
www.johansongroup.net info@johansongroup.net www.HRProfessionalsMagazine.com
23
Your Employees: Love ‘em or Lose ‘em By CHRIS ANDERSON
Is your company plagued by high turnover and attrition for no explainable reason? Are you constantly worried about losing good employees after you’ve spent the time and money to train them? You’re not alone and there’s reason for concern. In a year-long survey conducted by CareerBuilder.com, 30 percent of employees are always searching for new jobs. Like typewriters and fax machines, long gone are the days when employees spent their entire careers with the same company. Now, employees are savvy about marketing their value to employers and demanding benefits and perks in return for their loyalty. As a result, retaining good employees is frequently at the top of every successful company’s strategic plan. As an employment lawyer, I’m often asked to address problems that result when the employer-employee relationship breaks down. These “break-ups” often repeat the same pattern: the employee feels undervalued, slowly disengages and then ultimately quits, or worse, files a grievance or lawsuit. So, how do strong companies retain talented employees? They work to make sure their employees feel valued – a simple idea that’s very challenging to execute. Employees who feel appreciated are typically loyal. They find their work meaningful, which results in feelings of fulfillment and satisfaction. Who would leave a job that makes them feel valued and satisfied? Answer: no one. Let’s review some of the obvious warning signs of low workplace morale: Distasteful humor or ridicule toward a specific supervisor or department; An overly active rumor mill (nothing erodes trust among employees faster than insidious rumors and gossip); high rate of absenteeism; frequent disciplinary actions (often a sign of disengagement and employee apathy); disproportionate number of complaints about stress; and, excessive number of grievances, employee conflicts or lawsuits. If two or more of the signs above are present, you could have a morale problem. But how do you identify and address its cause? There are innumerable strategies that successful companies use to gauge morale, but they all boil down to one simple concept: listen to your employees. Management must communicate and interact in a meaningful way with their employees. Implement an “open door” policy that encourages employees to communicate with management about their concerns. Openly invite feedback and ideas from employees. “Walk the floors” regularly not only to facilitate dialogue, but also to convey unity, collaboration and teamwork. Conduct exit interviews with departing employees. While they can be difficult and time-consuming, exit interviews are often the best and sometimes the only way to get valuable information about your workforce because departing employees can offer a candid perspective on workplace events, supervisors and other employees that you wouldn’t get otherwise. The point is to listen and engender trust so that employees come to you with an issue first before they go to a competitor, the government or court. Now let’s assume that your workforce suffers from low morale but, despite your best efforts, you just can’t understand why. It’s best at this point to be proactive and consider 24
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offering your employees what’s important to them. Managers mistakenly believe that employees only want job security and higher pay. Workplace surveys reveal, however, that an overwhelming number of employees care far more about feeling appreciated and valued than they do about money and advancement. For instance, flexible workweeks, casual Fridays or even sodas in the kitchen are meaningful ways you can show employees that you value their work. So, how do you know what’s important to your employees? Think about it in terms of generational perceptions. Every generation is different and each has unique core values and preferences that signal how they want to be lead, managed and ultimately inspired in the workplace: Baby boomers (DOB 1946 – 1964), otherwise known as the “me” generation, are interested in personal growth and want jobs that improve the quality of their lives and those in their communities. In fact, 70 percent of female baby boomers say it’s “very important” that their jobs give them a sense of purpose. Communicate with boomers in terms of career advancement, personal growth and success. Gen X’ers (DOB 1965 to 1976) are fiercely independent and enjoy jobs that offer discretion and autonomy. Unlike boomers, work is “just a job” and doesn’t typically provide an avenue for personal growth. It’s important to give boomers a “long leash” and provide them the opportunity to achieve a work-life balance. The oft-maligned and misunderstood Millennials (DOB 1977-1994) are confident, egalitarian and collaborative. They are willing to change jobs or even careers to better manage work-life demands. Of all generations, they are most willing to sacrifice higher pay and job advancement to gain the flexibility they believe they need to take care of their families or pursue their personal interests. In fact, 38 percent of Millennials would consider moving to another country to gain better parental leave benefits. Any morale solution for Millennials should focus on results, not strict adherence to process. Managers should consider providing all their employees as much freedom as possible to be productive and achieve results. Morale solutions include offering paid family leave and schedule flexibility to allow employees some control over when and where they work. “9 to 5” work schedules are relics of a technologically ancient era. The widespread use of broadband, smartphones, tablets and laptops means employees can work and produce just about anywhere and anytime without being tethered to an office or worksite. If work-life balance is important to your employees (and it likely is), find creative ways to help them find it. To avoid a dreaded talent drain, companies must be flexible and offer employees the opportunity to find meaning and fulfillment in their work. Doing so will convey your appreciation and respect. Remember, if you don’t appreciate your employees, your competitors almost certainly will.
Chris Anderson, Shareholder Littler Mendelson Nashville chrisanderson@littler.com www.littler.com
Wish List
May all your wishes come true this holiday season.
Season’s Greetings from
LITTLE ROCK | NORTHWEST ARKANSAS | CGWG.COM |
Turning Back the Clock on
Workplace Flexibility By NANCY HAMMER
T
he end of the year is often a time of reflection and an opportunity to take stock of what has gone well and what needs improving, both at work and at home. For me, this comes in the form of the good old pro-con list. Am I being challenged at work? Do I still feel passionate about what I do on a daily basis? The pros and cons change over time but what I always find at or near the top of my list is workplace flexibility. Having the ability to attend to my personal needs while I accomplish my work objectives (even if that means working after-hours), is something I value greatly as do many employees who are fortunate to establish flexible work arrangements. Whether it’s attending a parent-teacher conference, going to the dentist, or meeting the dishwasher installer, being able to accomplish my work outside of traditional hours has been indispensable to me as I suspect it is to many other households. Whether it’s working from the kitchen table or in an office cubicle, technology has enabled employees to be productive anywhere and the demands of the next generation of employees will continue this trend. A recent Atlantic magazine article discussed the many studies showing that Millennials do not measure productivity by hours spent in the office. Instead, as a 2013 PricewaterhouseCoopers study concluded, “they view work as a ‘thing’ not a ‘place.’” And it’s not just Millennials and Gen Y that are looking at work differently. According to the 2014 National Study of Employers (NSE), a report released by the Families and Work Institute (FWI) and SHRM, 87 percent of employees report that the flexibility offered would be “extremely” or “very” important in deciding whether to take a new job. The NSE data proves that employers are getting the message on the importance of reinventing work by providing more flexibility in term of “where” and “when” work is done. Even the largest employer, the federal government, has taken steps to create more workplace flexibility recognizing the value for both the employee’s ability to meet the needs of work and personal life and the employer’s needs for greater engagement and loyalty in the workforce. Workplace flexibility is becoming a standard of the modern workplace. Unfortunately, sometimes the laws and regulations governing the workplace don’t keep pace, making it difficult for employers to offer flexibility options. Government regulation, by its very nature, directs employer decision-making. The key is ensuring that regulations establish basic protections of the workplace without stifling innovation and an employer’s ability to respond to the needs of its industry and the identified needs of employees. The Administration’s recent proposed rule on overtime, if made final in its current form, will roll back the clock on the progress employers have made to reinvent work.
Proposed Overtime Changes Limit the Reinvention of Work Last year, the President directed the U.S. Department of Labor (DOL) to issue proposed regulations to update and modernize the exemptions for executive, administrative, and professional employees, often called “white collar” exemptions. The Fair Labor Standards Act (FLSA), enacted in 1938, requires that employees be paid overtime at a rate of at least one and a half times their regular rate of pay for all hours 26
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worked over 40 hours in a workweek, unless they qualify for an exemption. To be exempt, employees must be paid on a salary basis, be paid at a certain salary threshold that is updated from time to time through DOL regulation and meet certain job duties tests. DOL has modified the regulations several times, most recently in 2004 when it increased the salary threshold and simplified the duties test. There is no doubt that the salary level needs to be adjusted again given that more than 10 years has elapsed since the DOL last took action. Unfortunately, the proposed changes will have significant and troubling ramifications for employers and employees, particularly regarding workplace flexibility. In a nutshell, the proposed rule will: ™ Raise the salary threshold to the 40th percentile of earnings for full-time salaried employees. This level is a more than a 100 percent increase in the threshold, raising it from $455 per week ($23,660 per year) to an estimated $970 per week ($50 440 per year) in 2016;
™ Set the salary threshold for highly compensated employees at the 90th percentile of earnings for full-time salaried employees ($122,148 per year);
™ Add a new provision to automatically update the salary levels every year using the percentile test or inflation.
The result of such a dramatic increase in the salary threshold is that many more employees will need to be reclassified as non-exempt under the regulation. Some industries will be harder hit than others, for example, non-profits where salaries are lower, even for the senior management. The CEO of a small nonprofit would, in almost all circumstances, meet the duties test as an exempt executive employee and enjoy a high level of flexibility and freedom in determining when and where work gets done, yet, under the new salary threshold, the CEO could be reclassified. The impact on areas of the country with lower costs of living, such as the Southern states, raises similar concerns. It is not surprising, therefore, that a 2015 Society for Human Resource Management (SHRM) survey on the impact of overtime regulations found that 67 percent of HR professionals believe the changes would likely lead to decreased workplace flexibility and autonomy.
Flexibility at Risk Reclassifying employees as non-exempt could force employees to utilize vacation time to cover appointments instead of having the flexibility as an exempt professional to leave a few hours early. But the ramifications go beyond managing medical and other appointments. A significant benefit of today’s technology has been the availability of online training and certification courses. Non-exempt employees, however, are often restricted from accessing certain online training platforms from their homes because of challenges associated with tracking those hours and the inability to pay overtime. Access to work through phones, watches and other “smart” devices commonly enjoyed by today’s workforce will present challenges to the newly classified non-exempt employees. The ability to job share or work in part-time exempt jobs will also be at risk. Currently, two employees could share an exempt job, with each working the equivalent of half-time. But if each earns less than $970 per week, then neither will be eligible for exempt status. This could cause employers to offer fewer part-time exempt options and instead only hire a single full-time employee for such positions, further limiting workplace flexibility.
Young Workers Affected Having employers cut back on flexibility may end up hurting the exact employees that DOL has targeted to help—those just starting to climb the management ladder. Many young people starting to build a career want the ability to work additional hours. An employee whose hours are limited does not have the discretion to take on extra work that may lead to greater experience or provide additional opportunity for career development. For example, a lower-level manager who is non-exempt will have less opportunity to participate in important decision-making that happens after hours or take advantage of work conferences and networking. Last year, DOL held a series of listening sessions on the proposed rule that many SHRM members and employer representatives attended. One participant told an impressive story of his own rise through the ranks to become manager of a large restaurant chain—something he believes would not be possible without the ability to show initiative, work extra hours, and take advantage of mentoring and training opportunities to distinguish himself. In a recent article on the impact of the proposed overtime regulation, SHRM Online writer Allen Smith quotes Terry Shea, co-owner of a gift store in Alabama, who conveyed her employee’s belief that the rule “just inspires mediocrity.” Shea also described the benefits that her assistant managers may miss out on if they are reclassified as non-exempt including participating in offsite retreats, meeting with vendors, networking with other retailers, and even serving a customer who walks into the store at closing time. HR professionals have always had to adapt to change—changes to the economy, culture, technology, and employee priorities all impact the workplace. We are embarking on an exciting journey toward the next generation workplace and we need to give employers the right tools and the ability to adapt along the way. Employers are embracing the reality that flexibility is a key component in creating a work environment that leads to employee engagement and helps employees do their best work. We must ensure that workplace laws and regulations do not have the unfortunate consequence of turning back the clock on advancements in the area flexible work.
Nancy Hammer | Senior Government Affairs Policy Counsel Society for Human Resource Management Nancy.Hammer@shrm.org shrm.org | @hammershrm www.HRProfessionalsMagazine.com
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Reasonable Accommodation and the Employer’s Obligation –
What’s the Trigger?
By HEATHER CROW
L
ast year, the EEOC received over 25,000 charges of disability discrimination. Such claims allege disparate treatment of some sort and often include an allegation that the employer failed to provide the employee with a reasonable accommodation for his or her job.
Most employers understand that they have an obligation under the Americans with Disabilities Act (“ADA”) to provide a reasonable accommodation to an employee with a disability. That generally begins with the interactive process. For some employees, however, their disability or particular limitation may not be obvious. In such situations, the employer may not be clear on what triggers the obligation to engage in the interactive process in order to provide an accommodation. First, there is no particular “right way” for an employee to ask for an accommodation. For instance, there are no magic words – the employee need not explicitly invoke the ADA, give his or her disability a name, reveal an exact diagnosis, or expressly ask for a “reasonable accommodation.” Similarly, the request does not have to be to a specific manager or department, be in writing, or via any other formal method. As one court explained, the employee must simply let the employer know of a need for an adjustment due to a medical condition – plain English is enough. Notably, it is not enough for an employee to ask for accommodation if he or she does not let the employer know that the request is because of a medical condition, particularly if that condition is not obvious. For example, in a case where an employee with HIV asked for time off, but did not inform his employer that the request was related to his medical issue (even if the employer knew of the condition), the court held that the employee failed to make an adequate request. After all, employers need not be clairvoyant. Similarly, despite an employee’s obvious mobility problems and frequent absences for medical and physical therapy appointments, when he needed a laptop for a work at home accommodation after recovering from planned surgery, yet did not tell the employer why he requested the laptop, the court held the employee failed to put his employer on notice that he needed the accommodation for his disability. Second, knowledge by one manager of the need for an accommodation may impute knowledge to the employer, even if that person is a low-level supervisor or is not the employee’s direct supervisor. In examining the case of a school secretary with a mental disorder, one court found that if either the principal or the direct supervisor knew of the need for an accommodation, that was enough to trigger the school’s duty to participate in the interactive process. In the case of a machinist who suffered from cluster migraines that caused tardiness and absenteeism, his low-level supervisor’s knowledge of his condition and its resulting difficulties triggered the employer’s knowledge such that the supervisor had an obligation to disclose the 28
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nature and severity of the condition to management and to engage in the interactive process, particularly when those difficulties (i.e. absences) resulted in disciplinary action. Such cases underscore the need to properly train supervisors and managers of all levels on their responsibilities under the ADA and how to recognize when an obligation is prompted. Third, employers should be aware that notice of a medical condition may not happen directly. This can be tricky if the disability is not immediately apparent, and can be imputed to the employer via events that occur. In the school secretary case, the court found that despite its claim that it did not know of the secretary’s diagnosis of mental illness, the school was on notice of illness based on the particular facts surrounding her employment: she was a long time employee with an exemplary record; she very suddenly began exhibiting alarming behavior at school; and she was hospitalized for three weeks because of her psychotic behavior. The employer, thus, had enough knowledge – regardless of whether it was expressly informed that she had a mental illness – to put it on notice that a disability existed and reasonable accommodation may be necessary. If the employee cannot make the request, as in the case of a hospitalization or certain mental disabilities, and the company knows of the existence of the employee’s disability, the employer must assist in initiating the process. On the other hand, if mental illness does not manifest at work and the employer is not otherwise on notice, it is incumbent on the employee to inform his or her employer that he has a medical problem and the resulting limitations, although he need not expressly identify the diagnosis. In this same vein, a particular impairment or disease may be disabling for one person but not for another. An employer is not required to assume that an employee suffers from a limitation – rather, in the absence of the special circumstances mentioned above, the employee should inform his or her employer of the existence of a limitation and request an accommodation where needed. In sum, there are two elements necessary to trigger the employer’s obligation to engage in the interactive process and provide a reasonable accommodation: (1) the employer must simply be aware that there is a disability (whether or not the employer knows the specifics or the official diagnosis); and (2) the employer must know that assistance is needed by the employee in order to perform his or her duties. Once these two factors are present, the employer should begin the interactive process and explore what accommodations may be made in order to permit the employee to perform his or her job duties.
Heather Crow, Associate hfc@kullmanlaw.com The Kullman Firm, Tallahassee, FL www.kullmanlaw.com
Employment Law FAQ
Best Practices and Strategic Leadership for 2015’s HOT ISSUES in HR December 17, 2015 12:30 - 4:30 pm
Reception to follow
Crescent Club
6075 Poplar Ave #909 Memphis, TN 38119 SIGN UP AT WWW.AWAMEMPHIS.ORG
or mail a check to: AWA PO Box 770186 Memphis, TN 38177
$90 attorneys, $80 AWA $45 HR professionals
CLE 3.8 general credits pending TN, MS, & AR
This seminar is being certified for HRCI and SHRM credit.
On June 26, 2015, the United States Supreme Court made history by holding that the fundamental right to marry is guaranteed to same-sex couples. In the months since the decision, employers have had to grapple with new dilemmas in the workplace, such as the rights of transgender employees, and accommodations for employees’ religions and disabilities. Join us for an in-depth discussion of these issues as well as strategies for enhancing your strategic leadership skills as a human resources professional. Schedule: 12:30-1:25 - John Russell, Lawrence & Russell Reasonable Accommodations Under the ADAAA 1:25-2:20 - Maureen Holland, Holland & Assoc. Rights of Transgender Employees following Obergefell v. Hodges 2:35-3:30 - Cynthia Thompson, HR Professionals 10 Strategies to Enhance Your Strategic Leadership Skills 3:30-4:30 - James H. Stock, Jackson Lewis P.C. Reasonable Accommodations for Employees’ Religious Beliefs
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3725 Champion Hills Dr.
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Suite 2300 Memphis, TN 38125 901-683-4320 www.thecentregroup.com 3
info@thecentregroup.com
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Real world solutions to your employee benefits needs. The world of employee benefits is COMPLEX. At Kiesewetter Law Firm, we understand this complexity. And we’re here to help. We are a boutique law firm that focuses on employee benefits, executive compensation and health care regulatory compliance law. From the day we opened our doors, our focus has been and will continue to be the same— to solve complicated legal issues in collaborative, comprehensive and creative ways while being client driven and cost-effective. Interested in working together? Give us a call.
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1 Tom Rieger, SVP of Membership of the Greater Memphis Chamber, welcomed attendees. 2 Joyce Margulies, Attorney, Margulies Employment Law Consulting, was the Emcee for the 2015 HR Legal Summit. 3 Panel led the attendees in a game of “Employment Law Jeopardy.” (L-R) Gary Peeples with Burch, Porter & Johnson; Lisa Krupicka also with Burch, Porter & Johnson; Imad Abdullah with Regional One; Katharine Kores with the Equal Employment Opportunity Commission; and Latosha Dexter with the University of Memphis. 4 and 5 Lisa Lichterman with Littler, and Frank Day with Ford and Harrison discussed “Retaliation.” 6 and 7 Maureen Holland with Holland and Associates, PC and Rodrick Holmes with Constangy, Brooks, Smith & Prophete LLP presented “LGBT Discrimination.” 8 Jeff Weintraub with Fisher & Phillips led a discussion on how an employer manages a difficult and potentially explosive sexual-harassment situation.
building blocks that identify all motivational factors within us. Sheridan emphasizes that every employee, regardless of their role, has the desire to move up the hierarchy toward a level of self-actualization, or in this case, active engagement.
Building a Magnetic Culture: How to Attract and Retain Top Talent to Create an Engaged, Productive Workforce
By WILLIAM CARMICHAEL
Kevin Sheridan’s Building a Magnetic Culture: How to Attract and Retain Top Talent to Create an Engaged, Productive Workforce is a “keeper’ for me. Take, for example, the opening quote by Henry Ford, “You can take my business, burn up my building, but give me my people and I’ll build the business right back again.” It is more than just Ford’s confidence here that reaches you. It is the loud and clear message that his people would be right there for him. This simple quote speaks volumes for what Sheridan’s applicable business guide is all about: how to build a magnetic work culture with the best people. Being a New York Times bestseller is also a clear indicator of how popular this book is. Aside from this, Sheridan provides supportive credibility as a highly sought after Human Capital Management consultant. But what exactly is a magnetic culture? To quote its author, “A Magnetic Culture draws talented employees to the workplace, empowers them, and sustains an environment in which they are more likely to stay. Such a culture is marked by engaged employees who share a strong desire to be part of the value the organization creates.” I like this passage and found myself coming back to it time and time again during the reading. Very simply, it symbolizes a creative vision organizations should strive to have. As a former HR and training professional who spent countless hours each week maneuvering through the recruitment and retention mine field, I can honestly say that I wish Building a Magnetic Culture had been published twenty years ago when the company and the leadership thereof could have applied Sheridan’s concepts. I and my company would certainly have been better for it. Generational issues aside, Sheridan’s advice to current organizational leadership directly applies, regardless of the industry or company size. The structure of the book supports a very basic premise: that employees fall into one of three engagement categories - actively engaged, ambivalent, or actively disengaged. These categories by themselves do not necessarily get your attention but the author’s description of each category will! Whether you are part of senior leadership or just joining your organization as a staff member, you will immediately recognize the characteristics defining each. True enough, most organizations have individuals within each and understanding why they fit into each is a critical component of what managers must do in today’s environment. For this, Sheridan’s clarifications are extremely helpful and in my opinion, HR professionals will appreciate his approach. For example, the “perils of disengagement,” a phrase Sheridan uses to classify those employees who have a natural tendency to “demagnetize” a culture, was certainly a wake-up call for me, as was his use of the general principle he refers to as “the Multiplier Effect.” The general concept wherein one dissatisfied customer will tell many others of their bad customer service experience, one disengaged employee can have a direct negative impact on other employees who only remain ambivalent about their organization. Quick and decisive intervention is needed and Sheridan provides the advice needed. Equally effective is the application of eight critical steps needed for sharing engagement ownership as well as relevant case studies and best practices presented within different organizational settings. And despite the reader’s past experiences, a relevant connection will develop with the individuals and scenarios described. Corporate trainers will also appreciate the relational characteristics the author uses for engagement to Maslow’s Hierarchy of Needs, the fundamental
Now being a “numbers guy,” I appreciated Sheridan beginning with, of all things, the statistical relationship to engagement. Readers should not worry though, as the statistical focus is not overdone. Take, for example, an early passage; “Engaged employees are ten times more likely to feel good work is recognized; Ten times more likely to feel Senior Management is concerned about employees; Eight times more likely to feel their supervisor encourages their growth” and so on. This sounds simple enough, but we must keep in mind that there is also a direct statistical correlation between positive and sustained performance with even the simplest of tasks done by a highly engaged employee who feels a connection to his or her job. These factual statements are then supported by credible sources throughout the book along with the statistical results for each. Performance training is nothing new, nor is Training’s Return on Investment or TROI. An organization’s Return on Engagement or ROE is, however, and Sheridan helps the reader make sense of this. The best example is one Sheridan provides with an employee’s understanding of and connection to his employer’s mission statement. What exactly does it mean to that employee? Or better yet, how exactly does that employee connect to or remain engaged to that mission? This is where the author’s best practices come into play. Equally effective are the Top 10 Drivers of Engagement that readers will find useful and applicable within any setting. In my opening I stated that Kevin Sheridan’s Building a Magnetic Culture: How to Attract and Retain Top Talent to Create an Engaged, Productive Workforce was a “keeper” for me, but allow me to expand on this for a moment. It would be safe to say that most HR professionals or even training professionals have a tendency to keep works like this as part of their reference library, as well they should. Let’s face it. We all like to expand our collection of books and resources we find helpful. This becomes tedious, however, when we can’t immediately locate the exact resource to help us determine a course of action for a problem staring us in the face. A common example would be in how to react to or work with a disengaged employee. Do we manage them up or out? Or better yet, what can be done to improve an organization’s stagnant culture so that innovation and creativity can begin? Sheridan’s book addresses these basic questions that plague us all in the workplace and I dare say, will be a “keeper” for you as well.
William Carmichael, Ed.D Strayer University william.carmichael @strayer.edu www.strayer.edu www.HRProfessionalsMagazine.com
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Reframing the Analysis of Academic Internship Programs By KRISTY GRAY and AMY JENSEN
Under the rigid six-factor test adopted by the U.S. Department of Labor (“DOL”) for whether interns are functioning as “employees” under the Fair Labor Standards Act (“FLSA”), many employers may wonder whether their unpaid academic or professional internship programs can ever pass muster. After facing a slew of cases by former or current interns, however, some courts—including, most recently, the Eleventh Circuit Court of Appeals— are declining to defer to the DOL’s test in favor of a primary beneficiary test designed to account for the economic realities of modern-day internships for academic credit and professional certification. In Schumann v. Collier Anesthesia, P.A., the Eleventh Circuit court directed the lower court to balance all of the relevant circumstances to determine whether the interns were truly “trainees” not subject to the FLSA’s protections.
Suit by Student Nurse Anesthetists In Schumann v. Collier Anesthesia, P.A., et al, No. 14-13169, 2015 WL 5297260 (11th Cir. September 11, 2015), twenty-five former student registered nurse anesthetists (SRNAs) who had enrolled in a master’s degree program at Wolford College, LLC brought suit under the FLSA, alleging they were “employees” entitled to minimum wage and overtime pay. During their time at Wolford, each SRNA participated in a clinical curriculum at Collier Anesthesia, P.A. that required SRNAs to participate in a minimum of 550 clinical cases. In the suit, the SRNAs alleged that Collier benefited financially by using their services in place of certified registered nurse anesthetists (CRNAs), and that they were scheduled to work year round and for a minimum of 8.75 to 10 hours per day. In response, some physicians testified that the SRNAs were more often a burden than a benefit—in part, because “the learning process impedes the actual delivery of anesthesia.” The defendants also presented evidence that Collier could adequately meet its patient safety and legal obligations without using SRNAs or incurring additional personnel costs. After the district court granted summary judgment to the defendants, the Eleventh Circuit vacated the decision and remanded it for further consideration in accordance with the factors laid out by the court.
The Eleventh Circuit’s Decision The Eleventh Circuit observed that the DOL’s six factors did little more than reduce the very specific facts of the nearly 70-year-old Supreme Court decision in Walling v. Portland Terminal Co., 330 U.S. 148, 67 S.Ct. 639 (1947), to a rigid test. Under the DOL’s test, six factors must be met, including that the internship is similar to the training offered in an educational environment, that it does not displace regular employees, and that the employer receives no immediate advantage from the activities of the intern. The court also noted the difficulty in analogizing the facts of Walling—involving a weeklong training program for a prospective railroad employer—to a case involving long-term, state-mandated clinical internships designed for academic credit and professional certification. Accordingly, in Collier, the Eleventh Circuit tailored “an application of Portland Terminal’s ‘primary beneficiary’ test. In determining who is the 32
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primary beneficiary of the program, the appellate court endorsed a sevenfactor “non-exhaustive set of considerations,” first articulated by the Second Circuit Court of Appeals in Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d 376, 383 (2d Cir. 2015). Under the Glatt test, every factor need not point in the same direction to conclude that a student is not an employee. Instead, courts must weigh and balance all of the circumstances, which may include considerations outside of the seven Glatt articulated factors: 1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa. 2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions. 3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit. 4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar. 5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning. 6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern. 7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship. The court’s largest deviation from the DOL’s test was in the “primary beneficiary” analysis. The DOL’s test requires that the employer providing the training may not derive any immediate advantage from the intern. The court noted, however, such an expectation is no longer feasible. It explained, “we find it difficult to conceive that anesthesiology practices would be willing to take on the risks, costs, and detriments of teaching students in a clinical environment for extended periods …without receiving some benefit for their troubles.” “[T]he mere fact that an employer obtains a benefit,” the court continued, “does not mean that the employer is the ‘primary beneficiary,’ of the relationship.” The court recognized that some employers may be inclined to maximize their own benefit at the unfair expense of students or trainees, and adopted a balancing test that focuses on the benefit to the student, but considers whether the manner in which the program is implemented takes unfair advantage of or is otherwise abusive towards the student. The court did not take a position on whether the SRNAs at issue were “employees,” but instead directed the lower court to reassess the facts using the balancing tests provided in its opinion. Although each analysis of an internship program will necessarily be very fact specific, the Eleventh Circuit’s opinion, and the balancing tests it articulated, provides helpful guidance to employers offering academic or clinical internship programs.
Kristy Gray, Associate Ogletree Deakins – Atlanta kristy.gray@ogletreedeakins.com www.ogletreedeakins.com
Amy Jensen, Associate Ogletree Deakins – Atlanta amy.jensen@ogletreedeakins.com www.ogletreedeakins.com
La b o r & E mp l oy men t Law S ec t i o n
Annual Seminar Friday, December 4 Holiday Inn University of Memphis
3700 Central Avenue
Full day of prominent local and national speakers will get you up to speed on current issues in labor and employment law 7.5 Hours CLE 7.5 Hours HRCI 7.5 Hours SHRM Great networking opportunity Includes breakfast, lunch and cocktail hour
Register at memphisbar.org Questions? 901-260-3275 or memphisbar.org
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The Strategic Business Advantage of Noncompetition Agreements By BLAINE R. BLOOD
Kentucky Noncompetition Law Evolves Do not lose faith in noncompetition agreements as a tool to protect your business. Last year in Creech Inc. v. Brown the Kentucky Supreme Court appeared to deal a blow to noncompetition agreements made between employees and employers when those agreements were reached mid-employment. The Creech decision is a troublesome one, and has been causing some significant anxiety for Kentucky employers. However, employers should not give up on the usefulness of noncompetition agreements, even when such agreements are reached with current employees. With time, additional court decisions will shed light on Creech, illuminating its boundaries and providing further guidance on how such agreements can be enforced.
There Are Strategic Advantages To Noncompetition Agreements As an example, on October 23, 2014, several months after the Creech decision, the Kentucky Supreme Court decided Ghirad v. St. Claire Medical Center, Inc. In this case, the employee Ghirad, a cardiologist, claimed that he was “wrongfully terminated” and asked the Kentucky trial court to temporarily prevent his former employer, St. Claire Medical Center, from enforcing his noncompetition agreement during pending litigation concerning Ghirad’s termination from employment. While the Kentucky trial court agreed with Ghirad and stayed enforcement of the noncompete, both the Kentucky Court of Appeals and Supreme Court concluded that the noncompete could be enforced during the pending litigation. In its opinion, the Supreme Court noted that it was not ruling on the enforceability of the noncompetition agreement, only that it would be enforceable while the litigation was pending, and that Ghirad, essentially, would be forced to prove the unenforceability of the noncompete in Court. In other words, even if the noncompete, which included a two-year competition restriction within a defined geographical area, were to eventually be proven unenforceable, Ghirad had to choose either to abide by the terms of the agreement during the litigation, or face the consequences should the agreement be proven to be enforceable. This likely made the agreement an important bargaining chip in the litigation proceedings, and any settlement discussions. Moreover, because the Kentucky Supreme Court has refused to impede enforcement of these agreements during litigation, the prospect of lengthy litigation means employees are less likely to challenge them.
A Little Creativity Goes A Long Way In Drafting Enforceable Noncompetition Agreements While the Ghirad Court did not ultimately hold the noncompetition agreement to be enforceable, the Kentucky Supreme Court did not appear to be troubled by a two-year noncompetition agreement with a limited geographical scope. Nor, apparently, was the Court concerned that the noncompetition agreement did not prevent Ghirad’s patients from exiting the prohibited geographical zone to visit Ghirad at his new office. In any case, in light of the Kentucky Supreme Court’s decision in Ghirad to uphold the enforceability of the noncompetition agreement during pending litigation, it only makes sense for employers to take steps to ensure its enforceability, thus increasing the value of the noncompetition agreement as a strategic advantage in litigation. It is, therefore, a helpful exercise to examine what the Kentucky Supreme Court might look for when determining the enforceability of a noncompetition agreement in light of Creech. 34
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The noncompetition agreement at issue in Creech was signed by an individual who had been employed by the company for 16 years. The agreement was offered on a “take it or leave it” basis, meaning that the only “consideration” offered to the employee was that if he signed the agreement his employment would not be terminated. The Court’s decision in Creech, though articulated several ways, may therefore come down to the following: that “[b]ecause the Agreement did not require Creech [the employer] to forbear the exercise of some legal right or otherwise result in some detriment to Creech, there was no consideration.” In short, because the employee did not receive any benefit from the agreement other than keeping the job he already had, there really was no agreement. In addition, the Creech decision noted it would uphold noncompetition agreements signed by employees mid-employment, if, in exchange for the signing the agreement, the employee receives some beneficial change in the employment relationship such as: • A raise; • A promotion; • An alteration of the “at-will” relationship; or • Specialized training or expertise. The precise type of consideration offered by the employer to the employee will depend on the type of employment at issue, the value of the interests being protected, the value of the employee, and the employer’s concerns about the loyalty of the employee. The key for consideration in these cases is that the agreement must include a benefit to the employee, and a detriment to the employer. This need not be expensive. Be creative. Although not specifically identified in Creech, some additional ideas could include payment for some continuing education credits, an offer of a small amount of severance should the employee be discharged within a certain limited period of time following execution of the noncompetition agreement, or transfer to a new job. In short, the requirements of Creech are not insurmountable, and as identified in Ghirad, it is still Kentucky’s policy to enforce noncompetition agreements. The strategic advantages to employers from noncompetition agreements are abundant. Moreover, with a little creativity, employers may still protect business interests with relatively inexpensive noncompetition agreements.
Blaine R. Blood, Attorney Bingham Greenebaum Doll LLP Louisville Office bblood@bgdlegal.com www.bgdlegal.com
Is an outdated compensation plan sabotaging your company’s success? You may be missing out on engaged employees, robust growth, and competitive edge. The right employee pay and reward program can drive your company forward—and OneCompensation can help you get there. We Provide: • Compensation Plan Design (Base, Bonus, and Incentives Guidelines) • Job Leveling and Career Pathing • Detailed Implementation and Communication Plans Our Results: • Increase your ability to attract, retain and engage employees and top performers • Reduce time needed to make informed, strategic decisions about your employees What can OneCompensation do for you? Let’s talk— email clifford@onecompensation.com or call 408-391-4274.
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‘‘Cadillac’’ Is a
Worth It?
taxes. It is thought that many employers will drop these plans and elect plans that cover less thereby reducing the number of higher paying plans and increasing the number of lower paying plans. • To create better care by ensuring that those who can afford the best plans pay tax dollars that will contribute to or subsidize cost assistance for plans that cover less.
How is it supposed work?
By CAMMIE SCOTT
In 2018 Obamacare’s Cadillac tax is set to go into effect. There’s been a lot of talk about the tax, but many people still do not understand what it is, how it will work or who it will affect. The overall goal was to create a deterrent for employers to provide overly rich benefits.
What is it? The Cadillac tax is a 40% excise tax imposed by the Affordable Care Act on the most expensive or “Cadillac” employer based health insurance coverage. These plans are currently defined as plans costing more than $10,200 for individuals and $27,500 for family coverage. It is actually levied on the plan sponsor, however, it will likely be passed along to employers who may pass it along to consumers.
What is the purpose? The tax has a number of purposes • To slow the growth of healthcare costs by discouraging the over use of care (i.e. tests deemed repetitive in nature or unnecessary) • To generate revenue for ACA spending • To ensure equality in plans. We often discuss income inequality in America. This tax is designed to provide insurance equality. The tiered system of plans is considered unfair by many as those with better plans are often afforded better care. • To decrease the cost of care. Plans with higher reimbursement schedules drive up the price of care. • To increase the availability of quality care. High-end plans with rich coverages and little to no out of pockets costs encourage over use of tests, treatments and hospital visits which decreases the availability of such services to other plan holders. • To increase “shopping” for service and value. People on plans that cover “everything” rarely shop or compare prices. Shopping creates competition which should help decrease cost of care. • To create an incentive to decrease the disparity between plans that cover more and plans that cover less. Plans that cover more will pay 36
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The Cadillac tax is an excise tax. Excise taxes are not deductible. Premiums are deductible so this is an extra fee for which there is no tax deduction so the total impact is actually greater than a 40% increase in premiums. The tax is designed to encourage employers to pay higher wages rather than provide better benefits. Wages are taxable while many benefits are not. By doing so the federal government could shift demand/spending from medical care thus reducing the demand and hopefully reducing the cost of care. The tax will begin in 2018 for the amount in premiums above the $10,200 threshold for individuals and $27,500 for families. For example, if an individual plan costs $15,000, the employer that offers the plan would be subject to a tax of $1,920 per individual covered by the plan. $15,000 premium - $10,200 threshold = $4,800 above threshold $4,800 above threshold X 40% tax = $1,920 The tax is supposed to be a deterrent or disincentive for employers who provide “rich” plans. However, this is not always the case. Some plans cost more because of the higher risk industry they are in or they have more people who require more care such as plans that cover retirees or employers with a number of older workers. The premiums for these plans may be higher, but the benefits may not be better. Part of what makes the calculation harder is determining what is counted in the premium amount. The following items are to be included: • Fully and self-insured group health plans including behavioral and prescription drug coverage • Most wellness plans • Medical Flexible Spending Accounts (FSAs) • Health Savings Accounts (HSAs) – both employer and employee pre-tax contributions • Health Reimbursement Accounts (HRAs) • Archer Medical Savings Accounts (MSAs) made with pre-tax contributions • On-site medical clinics providing more than de Minimis care • Executive Physical Programs • Pre-tax coverage for a specified disease or illness
• Hospital indemnity or other fixed indemnity insurance • Federal/State/Local government sponsored plans for employees • Retiree coverage • Multi-employer (Taft-Hartley) plans
Who does it affect and how much will it raise tax dollars? The Cadillac tax affects people with “benefit rich” plans. It will either cost them more money or price them out of the plans through the taxes. This may be Unions, large industry executives or small business owners with plans designed to take care of their family. The Tax Policy Center estimates that initially the tax will only impact 6% of American households. This amount is expected to rise sharply as medical inflation drives up the cost of medical plans. It also affects employers who offer the plans. They will be faced with the choice of paying the tax, passing it along to employees or reducing benefits. None of these are desirable solutions. Ultimately, it has the potential to impact everyone. It is estimated to bring in an additional $80 billion dollars in revenue between 2018 and 2023 to help pay for the Affordable Care Act – one of the many new taxes introduced by the Act – to pay for subsidies, Medicaid expansion, etc.
Who is for it? People on both sides of the aisle find common ground in opposing this tax for both practical and ideological grounds. Both Republicans and Democrats in Congress wish to repeal it. Republicans don’t like the ACA period while Hillary Clinton has said the tax will shift the cost of care more to the middle class. It is worth noting that the final regulations have yet to be written and without them no can predict the exact impact or the final consequences of the Cadillac tax.
What to do? When you consider all that is to be counted towards the premium dollars, it is important to review the potential impact on your plans and make preparations now. 2018 is not that far away. There are still many plans that are grandfathered and those plans may be better off paying the taxes rather than changing their plan designs. Work with your broker, accountant and attorney to develop a plan now and prepare for the impact of the Cadillac!
Cammie Scott, SHRM-SCP, SPHR President, CK Harp & Associates cscott@ckharp.com www.ckharp.com
OCAHO concluded ICE followed the law in first issuing the Technical Errors notice and later the NIF. BTI failed to provide any support for this position in OCAHO case law, relevant statutes or pertinent regulations. Therefore, ICE did not violate BTI’s due process rights and BTI failed to establish its estoppel defense.
Retention of I-9s – How long? BTI also argued that it was not required to retain five of the I-9 forms in question for former employees, because it was beyond the retention period. The retention period is “three years after the date of hire or one year after the date the individual’s employment is terminated, whichever is later.”
Employer’s Unique Defense Rejected By BRUCE E. BUCHANAN
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he Office of Chief Administrative Hearing Officer (OCAHO), in United States v. Buffalo Transportation, Inc. (October 2015), found Buffalo Transportation, Inc. (BTI) committed over 100 Form I-9 violations and rejected a unique defense raised by BTI. However, OCAHO reduced the proposed penalties from about $110,000 to $75,600.
ICE’s Findings of Violations After service of a Notice of Inspection (NOI), Immigrations and Customs Enforcement (ICE) determined BTI had a 100% error rate on its 139 Form I-9s. Specifically, ICE alleged BTI failed to prepare or present 84 I-9 forms and failed to timely prepare I-9 forms for 54 employees. ICE based its proposed $109,675 penalty on a baseline penalty of $935 minus 5% mitigation for each of these factors - small size of the employer, lack of bad faith, absence of undocumented workers, and no history of prior violations, and a 5% enhancement for the seriousness of the violations. Thus, the baseline penalty for 100% violations was set at $794.25 per violation. To my knowledge, this is the first time that ICE mitigated a proposed penalty for absence of undocumented workers. Usually, this is considered a neutral factor.
Employer’s Affirmative Defenses BTI raised seven affirmative defenses, all of which OCAHO found had no basis under the law. The most unique defense was that ICE should be estopped from assessing fines from the 138 substantive violations because it previously served a “Notice of Technical or Procedural Failures” on BTI. OCAHO did not find this defense applicable because the “Notice of Technical or Procedural Failures” contained a provision stating “Additional failures to meet the employment verification requirements of section 274A(b) of the INA may have been discovered, these failures are not included in this notification and may result in the issuance of a Notice of Intent to Fine.” (NIF)
In this case, the date of inspection was August 28, 2013, thus, this was the date to apply in the retention period test. BTI was successful in arguing it did not need to retain I-9s for three former employees. It should be noted BTI did not have any I-9 forms for the three employees in question; if it had, ICE could have audited those I-9 forms and reviewed them for substantive or technical errors.
ICE’s Conclusions and Penalties OCAHO found BTI did not rebut any of the violations; therefore, it found 135 violations. BTI asserted its violations of failing to prepare or present I-9 forms for numerous employees was not a serious violation. OCAHO case law has repeatedly stated these are serious violations. Therefore, the 5% penalty aggravation was justified under the law. Despite the numerous serious substantive violations, OCAHO determined that a civil penalty of $794.75 for each violation was too high because penalties in this range are reserved for the “most serious and egregious violations. OCAHO determined that 81 violations for failure to prepare I-9 forms were more serious than the 54 instances when BTI did not timely complete the I-9 forms within three days of hire. Thus, OCAHO assessed the failure to prepare the I-9 forms at $600 per violation and the other violations at $500 each. Accordingly, the total penalties were $75,600.
Takeaway Even though BTI was only successful in removing three violations, it was successful in reducing the penalties by about 30 per cent. This is another instance which reflects the success in litigating I-9 form penalties before OCAHO. Of course, this assumes the employer could not persuade ICE to lower the fines sought in the NIF in order to resolve the case. Many times you can obtain a sizeable reduction in penalties in negotiations with ICE and avoid the cost of litigation.
Substantive v. Technical Errors OCAHO stated there is a distinction between substantive paperwork violations and technical violations, which can be corrected to avoid fines. When ICE found six technical errors, it issued the Notice of Technical or Procedural Failures, which included the above language on this notice not limiting ICE’s ability to issue a NIF. The basic reason why the Notice of Technical Failures is issued first is because if the technical errors are not corrected, then they become substantive errors.
Bruce E. Buchanan, Attorney Siskind Susser P.C. bbuchanan@visalaw.com www.visalaw.com www.HRProfessionalsMagazine.com
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THE NEW WORLD OF
Branding, Resumes and Interviews
Resumes Forget the objectives and writing that you are a good team player. Everyone is going to put that and this becomes meaningless. Instead of focusing on something that you consider yourself to be (hard worker, persistent, out of the box thinker) talk about what you have done. During the 70’s and 80’s resumes, were expected to be only one page, as most people looking for work only had a few jobs during their lifetime. Today, it is common for people to switch jobs every three years. Resumes today can be two and up to three pages for executives. Having a number of short term jobs once meant that the person was unreliable, lacked loyalty and the ability to stick with an employer. Today it can be an indicator that the person has self-confidence, great ability and knowledge and is in high demand in the marketplace. Instead of objective at the beginning, resumes now include a quick summary of what the job seeker is offering. After that, we will find a detailed job description focusing on accomplishments.
By HARVEY DEUTSCHENDORF
The world of looking for work has changed quite drastically over the last ten years. What recruiters and human resource people are looking for and how they are looking, has entered a new era where terms such as branding and keyword search has entered the main stream of the people search game. This is an overview of what the current world of work search looks like and how to become prepared.
Branding What everyone wants to know about you is, “What makes you unique and what qualities you will bring to the organization”? What are your unique abilities and talents? If you are struggling with this question, ask the people who know you best to produce a “Wordle” of you and look for the words that are used the most. Having a solid grasp of your strengths will allow you to position yourself to fit in with and chose which organizations you want to work for. Think of all your social media as a branding process. Many employers will check social media so think carefully before posting anything. Come up with a strategy for postings that will portray an image you want the world, especially your potential future employer, to come away with after viewing your sites. Ask people who don’t know you to give you honest feedback upon viewing your sites and describe the person that they see. THE BAD: Posts showing you having too much to drink partying with friends, slacking off and enjoying sedentary leisure time such as sitting around with a drink in your hand. THE GOOD: Anything showing you helping others in the community, doing charity work, learning a new skill and/or spending quality time with family. Basically anything that portrays you as an engaged person who enjoys learning and is actively involved with helping others in their community. If there are vacation photos, try to post shots of you doing something active, part of a team effort, outgoing and positive. 38
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Resumes that were reviewed by Human Resource people in large organizations, managers and owners in smaller companies are increasingly scanned by information systems looking for keywords. When applying for any job it is crucial to carefully look over the job description and put in as many key words as possible to increase the chances of having your resume come up in the right pile. Getting professional help with a resume is always a good idea as it is one of the most important documents you will create. However, make sure that whoever is helping you is up on what the marketplace is looking for today rather than being stuck in the 70’s
Interviews “What results did you achieve, what challenges did you take on and what obstacles did you overcome?” Bragging outright about accomplishments is a good way to turn off interviewers. However, when talking about achievements, there are ways to draw attention without appearing to be bragging. Communicate your success information as a story and focus on the struggle; what you had to overcome in order to attain the result. Instead of giving the impression that it was your own brilliance and talent that got you there, focus on the effort it took, the number of times you had to repeat a task or effort. Look for opportunities to use humor and to bring out your human side. Be yourself, real and authentic. When asked about weaknesses, don’t give the answers like being a perfectionist or that you put too much into your work. In the past, this was seen as a way of not giving away a real weakness, but something that employers actually valued. That won’t fly today and you will come across as insincere and trying to hide something. Be prepared to honestly talk about something you struggle with and what you are doing to change it. Many people have a fear of public speaking. You could, for example, say that you get flustered and nervous when speaking to groups, but mention you are going to toastmasters or taking a public speaking course to help you overcome your fear. Harvey Deutschendorf is an emotional intelligence expert, author and speaker. To take the EI Quiz go to theotherkindofsmart.com. His book THE OTHER KIND OF SMART, Simple Ways to Boost Your Emotional Intelligence for Greater Personal Effectiveness and Success has been translated into 4 languages including Chinese. You can follow him on Twitter @theeiguy.
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