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Monthly Archives

November 2008

LIMITING EMPLOYEES “PROTECTED ATIVITIES”

By Your Employee Matters | No Comments

Every employer wants to, and should, keep confidential information just that. In an effort to do so, companies use employee handbook provisions, contracts, passwords and access codes, locked file drawers and so on. What many employers forget is that because of the breadth of these protective documents, any employer can run up against the National Labor Relations Act Rule which allows employees to discuss with the wages, hours and other terms and conditions of their employment. As the NLRB stated in a recent case, “The ultimate question in these cases is whether employees reading these rules, would reasonably construe the rule as precluding them from discussing their terms and conditions of their employment with other employees or a union or that they reasonably understand that the rule was designed to protect their employer’s legitimate proprietary interests.” As the board has further stated, “It makes no difference whether the employees were asked not to discuss their wage rate or ordered not to do so. Nor does it matter if the rule was unenforced… In the absence of any business justification for the rule, it is an unlawful restraint on the rights protected by Section 7 of the Act and violated by Section 8A.”

Learn more about “protected activities” here.

ACCOMMODATING ACTIVE MILITARY DUTY

By Your Employee Matters | No Comments

Employers continue to be faced with military personnel coming back from active duty, whether fighting wars or battling hurricanes and other natural disasters. Last year a court ordered Target Corp. to pay nearly $1 million in damages for retaliating against a National Guardsman who complained about being demoted when he returned from active duty. A graduate of West Point, James Patton served six years in the Army before retiring as a captain in 2001. After the Sept. 11, 2001 terrorist attacks he joined the Oregon National Guard. Patton had been working for Target since the summer of 2000 and was employed as a group leader at the company’s distribution center in Albany, OR. After returning from a two-week term of active military duty with the National Guard in 2003, Patton was told he had been demoted.

He sent an e-mail to co-workers at other Target warehouses informing them of the demotion and directing them to contact his successor. Patton also contacted an employer support representative from the Oregon National Guard to help convince Target to reinstate him to his prior position.

In mid-July 2003, Target fired Patton, saying his e-mail to co-workers was disruptive and violated company policy.

Patton testified at trial about his treatment, the timing of his National Guard training and his demotion on the day he returned from active duty. He told the jury that after his supervisors demoted him, they told him to take a week off. Patton said that one human resources official told him that the company thought he would quit after being demoted. Target contended that it does not discriminate on the basis of military service and has a strong history of supporting employees who are veterans, reservists, or members of the National Guard. Several of Patton’s supervisors testified that both his demotion and termination were based on legitimate personnel reasons.

However, the jury ultimately found that Target officials retaliated against Patton for asking the National Guard to intervene. They awarded him $84,970 in lost wages, other economic damages and non-economic damages. The jury also ordered Target to pay $900,000 in punitive damages. Read the entire opinion here.

Here’s the point: This is a serious exposure to the company that doesn’t handle things right! The DOL has issued a great FAQ on the combined FMLA/ USERRA obligations.

FAMILY CAREGIVER BIAS CLAIMS ON THE UPSWING

By Your Employee Matters | No Comments

Family caregiver bias claims have sharply risen in recent years. This type of claim has increased by 400% during the past decade. A big reason is that younger men and women entering the workforce expect to spend more time with their families and less time in the office.

The Equal Employment Opportunity Commission has issued guidelines addressing this issue. Although the agency emphasized that it didn’t intend to create a new category of protected workers, it did provide 20 examples of caregiver (also known as family responsibilities) discrimination. The examples address everything from stereotyping during the hiring process to the hostile work environment that can result from stereotyping mothers or fathers. These guidelines signal the commission will be more aggressive in investigating these claims.

The most common example of caregiver discrimination occurs when a women either informs her employer she is pregnant or gives birth to a child, and then finds her workload and responsibilities decreased – commonly referred to as being put on the “Mommy track.” This happens because employers wrongly assume that a pregnant woman or new mother is no longer devoted to her work. Men who file these claims usually make the opposite argument – that they faced discrimination against for not following gender stereotypes. For example, a father might take some time off work to care for his children, and when he returns he is put on rotating shifts so he can never set up regular child care, forcing him to quit.

A caregiver or family responsibilities claim must be tied to another type of discrimination because “caregiver” is not a protected class of worker. Instead, workers must rely on such laws as the Americans with Disabilities Act (for example, needing time off to care for a disabled child) or Title VII (perhaps tying the claim to gender discrimination). Claimants can also use a variety of state law claims, including state equivalents to the federal discrimination statutes, and common law claims such as wrongful discharge, breach of contract, or intentional infliction of emotional distress.

A handful of states have enacted laws that address caregiver discrimination. The District of Columbia, for example, has an ordinance protecting workers from family responsibilities discrimination, and similar legislation is pending in California. In Alaska, a more limited statute protects workers from discrimination based on parental status. A similar executive order covers federal workers and contractors.

Employer training is the key to reducing family responsibilities discrimination and lawsuits. The commission’s new guidelines make it clear that employers must focus on the job, not family or kids. Employers are advised to avoid those issues and stick to the job description, both in interviews and in conversations. Employers shouldn’t assume a female employee can’t handle the demands of motherhood and a full-time job.

Read Questions and Answers about the EEOC Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.

HOURLY WAGE SUIT FOR ‘DONNING’ SAFETY CLOTHING DENIED

By Your Employee Matters | No Comments

Union employees of a poultry processing company are not entitled to compensation under federal law for time spent putting on and taking off protective clothing, according to a recent federal appeals court ruling.

This topic continues to develop in court rulings around the country. For example, a contrary ruling on this issue came out earlier from another federal appeals court.

In the most recent case, the employer compensated workers from the time chickens to be processed reached the production line. Employees were paid based on when the first and last chickens reached the line.

The workers were required to wear various articles of protective clothing, which they had to put on before working on the production line. They had to remain after the production line time ended to take off the protective gear.

The court said the federal Fair Labor Standards Act did not include “hours worked” for time spent changing clothing at the beginning and end of each workday, when this time was excluded from measured working time under the collective bargaining agreement. (The CBA was the main factor in the analysis).

Read the DOL advisory on “hours worked.”

Note that state wage and hour laws might also affect this issue. For example, California employers should look at sections 46 and 47 of the Wage and Hour manual.

THE WORLD IS BECOMING A RISKIER PLACE — INCLUDING YOUR WORKPLACE

By Your Employee Matters | No Comments

Jury Verdict Research has just released its Jury Awards and Statistics. It’s not a pretty picture. The median award in 2007 came to $250,000, up from $192,000 in 2006, representing an all-time high. Nearly one in five verdicts (18%) came in between $100,000 and $250,000, 14% averaged between $250,000 and $500,000, while 22% came in at more than $1,000,000, the highest percentage ever! Discrimination awards (based on race, sex, and disability) jumped from a low in 2006 of $247,500 to $252,000 in 2007.

The probability of a plaintiff’s winning a verdict in 2007 came to 71%, up from 56% in 2006. The probability of a plaintiff verdict was even higher in state cases at 66%, up from 55%. One bright lining: the median settlement for 2007 was $77,875, a reduction from $85,000 in 2006. The report contains many more statistics, as well as noteworthy employment practices awards.

Here’s the point: In today’s tightening economy the last thing you can afford is an employee lawsuit! Make sure that you have your compliance act together and purchase Employment Practices Liability Insurance (EPLI).

EDITOR’S COLUMN: ARE YOU MARKETING SAVVY?

By Your Employee Matters | No Comments

My workshops stress the importance of internal branding. I discuss how you can use acumen learned in the field of marketing and turn this inward to motivate, engage and inspire your employees more effectively.

In a recent issue of One Look magazine (a great publication for the advertising community), I highlighted these words in the issue:

  • Fresh
  • Buzz
  • Integration
  • Immersion
  • Experience

These words lie at the forefront of marketing to clients and customers – which means that they should also be at the forefront of the marketing efforts to your employees. How well would you say that the employee experience captures these ideals? I can hear the chorus now – “Come on Don, we’re a manufacturing firm, a CPA office, a small retailer, etc. How can we expect to create this type of excitement?” My answer to you is this – if you don’t find a way, I guarantee that sooner or later you’ll be out of business. Just as retailers who don’t capture the essence of these phrases go out of business from the outside, companies that don’t capture the essence of these phrases will go out of business from the inside. It’s a choice.

I’d recommend working with your marketing team. Ask your employees how you can create some buzz and make things fresh. Change around the furniture, paint the walls, enhance the lobby, get your employees kids to do some drawing for you – in short, make things fun. If you do so, your work experience will be richer and so will your bottom line.

PROTECT YOURSELF AND YOUR FAMILY WITH LONG-TERM CARE INSURANCE

By Life and Health | No Comments

With 77 million U.S. baby boomers reaching retirement over the next decade, experts say that the number of people in need of long-term care will double over the next 30 years. Some estimate that 14 million Americans will require some form of assistance with day-to-day activities by 2035. Consequently, senior care could soon replace child care as the country’s number one dependent care issue.

The cost of long-term care can range anywhere from $25,000 to $95,000 a year depending on the region. Without Long-Term Care insurance to cover this hefty price, many families end up paying out of pocket and suffering great financial strain. However, money isn’t the only thing at stake for families without Long-Term Care insurance.

Families who are suddenly faced with the unexpected cost of long-term care must make a tough decision: They can either pay the exorbitant price for a nursing home or professional caregiver or take the ailing loved one into their own home. A great deal of families without Long-Term Care insurance end up caring for their relative at home. Such families often have dependent children in the home in addition to an ailing parent. They quickly learn that caring for an ill loved one has a major emotional and physical impact on everyone in the family. When you take a sick loved one into your home, every day tasks such as eating, bathing, dressing or going to the bathroom become daunting struggles. Plus, caring for an ailing senior is a full-time job—24 hours a day, seven days a week. The responsibilities involved with this undertaking begin to take a toll on the entire family.

Oftentimes, those caring for a sick relative no longer have time to take care of themselves. They abandon healthy eating habits and exercise routines because they simply don’t have time anymore. They also suffer from high levels of stress. Caregivers often become sleep deprived because they must get up numerous times throughout the night to help their loved one. This can all add up to health problems for the caregiver. As a matter of fact, some studies show that long-term caregivers often have a shorter lifespan and more health problems than other people their age. Many long-term caregivers end up quitting or losing their jobs. After all, you can only take so many sick days to care for your loved one. Without a job to help pay the bills, many of these families find themselves struggling financially, often sinking deep into debt.

If you believe that Long-Term Care insurance is unaffordable, just think about the price you and your family could have to pay without it. By planning ahead, you will save yourself and your loved ones from immeasurable amounts of physical, emotional and financial stress. Planning for long-term care is not an easy task for anyone. Most of us don’t want to think about a time when we or one of our loved ones might need help with simple daily tasks. However, in order to protect your family’s financial and emotional well-being, it’s important to plan ahead for an unexpected long-term care situation.

Having Long-Term Care insurance will greatly lessen the suffering that comes with a long-term illness—for both the caregiver and the patient. That’s because with insurance, your family can afford to place your loved one under professional care. This will allow you to focus on dealing with the emotional issues of having an ailing loved one instead of completely draining yourself by trying to meet their physical needs 24/7.

The first step in protecting yourself from such a painful situation is finding a reliable financial advisor who can help you design a long-term care plan. One of our financial professionals can walk you through your family’s needs and find an insurance policy that fits your unique situation and budget.

PATIENTS FIND FAST, AFFORDABLE, AFTER HOURS MEDICAL CARE IN RETAIL CLINICS

By Life and Health | No Comments

As an increasing number of big box stores and pharmacy chains open up in-store retail clinics, consumers have more options than ever for receiving medical treatment outside of normal doctor office hours. These retail clinics, such as the RediClinic in many Wal-Marts or the Minute Clinic at CVS, offer incredible convenience to people who become sick at night or on the weekend.

In the past, if a child developed an ear infection or started running a high fever on a Friday night, parents had very limited choices. For the most part, they could either take their child to the local emergency room where they might wait for hours to be seen or they had to watch their child suffer through the weekend until the pediatrician’s office reopened on Monday. Even if they did decide to wait until Monday, they often couldn’t get an appointment right away or they’d be forced to sit in the waiting room for an hour before their child could be seen.

Now, as retail clinics become more common, sick consumers can simply stop by their local superstore or pharmacy to receive medical treatment. These clinics are open during the day, in the evening and on weekends, and most of them take insurance. At most of these retail clinics, you can be seen by a nurse practitioner within 15 or 20 minutes. If you receive a prescription, you can fill it right there at the store’s pharmacy.

For years, thousands of free-standing primary care clinics have operated out of malls and other highly populated areas throughout the country. These more elaborate clinics are often staffed by physicians and offer a broad range of services. Unfortunately, patients often pay a hefty price tag for the convenience of these primary care clinics. However, the newer retail clinics, typically staffed by nurse practitioners, offer fewer services at a much lower price. A retail clinic visit typically costs between $40 and $60—much less than an emergency room visit and even cheaper than some doctor’s office visits.

As these retail clinics continue to meet incredible success, the industry is expanding at a rapid pace. There are currently almost 1,000 retail clinics throughout the nation, according to a Verispan survey released in January 2008. These clinics operate in 36 states throughout the U.S. According to the Verispan survey, CVS Pharmacy’s Minute Clinics are the fastest growing pharmacy retail clinics with more than 390 locations. The second largest retail clinic chain is Take Care Clinics, located in 136 Walgreens stores throughout the nation. Wal-Mart currently has 57 in-store clinics throughout 12 states. However, the popular big box store has plans to expand to a whopping 2,000 clinics by 2014. Wal-Mart’s clinics are run by outside medical firms, such as for-profit companies like RediClinic, regional health plans and local hospitals.

Cut-throat competition

Retail clinic prices vary depending on the services provided to the patient. A typical flu shot costs $15 to $30, treatment for poison ivy and pink eye is priced at around $50, and cholesterol, diabetes and pregnancy tests are generally less than $50. However, as the industry continues to mushroom, these prices are dropping. Surprisingly, retail clinics aren’t just competing with other retail clinics—they’re also creating some tough competition for regular doctor’s offices and hospitals. Some internists and family doctors are starting to worry about losing business to these store clinics, and they’re also concerned about the level of care patients are receiving at these centers. To keep up with these popular retail clinics, many doctors are expanding their office hours and some are even offering Saturday appointments—a change that greatly benefits their patients.

Although the retail clinic industry is still relatively new, there’s no doubt that this innovative business model is having a significant impact on the health care industry. First and foremost, these in-store clinics offer affordable convenience to patients who need medical care after regular hours. However, these clinics are also having a desirable side effect on the medical industry—they are forcing family physicians to take a closer look at their business, improve their services and increase their accessibility.

ENSURE COVERAGE WITH SHORT-TERM MEDICAL INSURANCE

By Life and Health | No Comments

What do you do if you suddenly lose your Health insurance coverage? Should you take a huge financial risk and go without insurance for a few months or should you find a way to temporarily fill the gap? Whether you’re a recent college graduate or a worker between jobs, a Short-Term Health insurance policy might be the perfect solution.

Short-Term Medical insurance (STM) is most commonly used by new college graduates who find that they’re no longer covered under their parents’ insurance plan. Many college grads sign up for STM insurance to fill the insurance gap until they find a job with an insurance plan. This ensures that they’re covered if they suddenly become ill or have an accident.

Even grads planning to start a new job immediately after graduation stand to benefit from STM insurance. Most employers have a waiting period of up to six months before new employees are covered under their health plan. STM insurance can keep them covered until their new insurance kicks in.

An affordable alternative

STM is much more affordable than Individual Health insurance plans or coverage under COBRA (Consolidated Omnibus Budget Reconciliation Act). Similar to most major health plans, STM insurance includes a deductible and co-insurance charges. However, because these policies are limited in length from six to 12 months of coverage, they can offer significantly lower rates. STM insurance usually costs about 30 to 35% less than individual health coverage.
Another benefit to STM insurance? If you have this type of coverage, you generally aren’t required to use specified in-network providers.

Not just for college grads

Although widely used by new college graduates, many other consumers could benefit from this affordable, short-term coverage as well. For example, if you suddenly lose your job and your Health insurance along with it, STM insurance could keep you covered until you find a new employer. STM insurance might also be a practical solution for the following people:

  • Independent contractors
  • Seasonal or temporary workers
  • Part-time employees
  • Recently discharged military members
  • Recently divorced people who are no longer covered through their spouse
  • Workers between jobs

Let’s say you’ve been working for the same company for 12 years and your Health insurance plan covers you, your spouse and your two young children. Suddenly, your company goes through some changes and your position is eliminated. You know it can take up to 10 months to find a new job with the same level of benefits—but how will you cover your family’s health care costs in the meantime.

Obviously, going without Health insurance is not an option, especially considering that you have children under your care. Your first viable option is to enroll in COBRA coverage to continue your current benefits. If you are eligible for COBRA and lose your job either voluntarily or involuntarily, you can receive up to 18 months of extended coverage for yourself and your dependents.

The downside is that you’ll have to shell out some big bucks if you choose this route. Under COBRA coverage, you will be required to pay 100% of your Health insurance premiums in addition to an administrative fee of up to 2%. This can get extremely expensive for someone who is currently unemployed.

Your second option would be to purchase an Individual Health insurance plan to cover your family until you find a new job. This might be less expensive than COBRA, but still not what most would consider affordable.

However, if you choose to purchase a 12-month STM insurance plan instead, you would pay considerably less for a similar type of policy. If you are confident that you can find a new job within a year or less, STM insurance is probably the ideal option.

Additionally, STM insurance is considered “creditable coverage” under the Health Insurance Portability and Accountability Act (HIPAA). Under federal law, if you have a gap in insurance coverage longer than 63 days, you will lose your Health insurance rights as designated under HIPAA. That means if it takes you longer than expected to find a new job and in the meantime you are diagnosed with a serious illness or become pregnant, you might have a difficult time finding an insurer to cover you. However, if you have continuous health coverage under a “creditable” plan such as STM, you cannot be denied Health insurance even if you develop a condition.

A basic plan

The reason that STM insurance is so affordable is because it is an extremely basic major medical plan. Although STM covers basic medical services, these policies do not cover comprehensive expenses such as maternity benefits or treatments for pre-existing medical issues. Therefore, if you are pregnant or have frequent health issues or a pre-existing condition, STM insurance is probably not your best option. COBRA or individual major medical coverage would be a more appropriate plan for you. But if you are generally healthy and need to fill a gap in coverage for a year or less, STM insurance is a smart and affordable solution.

CONSIDER THESE OPTIONS TO REDUCE YOUR MOTORCYCLE PREMIUMS

By Personal Perspective | No Comments

Buying insurance coverage for your motorcycle can be expensive as bikes present a higher risk than automobiles. They’re more susceptible to accidents caused by bad weather and poor road conditions. They are also less visible to other drivers, and less stable than cars.

In spite of this, you want to be sure you have sufficient coverage for your bike, because you’ve likely invested a lot of money in it. To help you find the best coverage for the best rates, the Insurance Information Institute offers the following tips:

  • Get seasonal coverage – Most bikers aren’t road warriors who consistently ride their bikes all year long. If you store your bike for several months out of the year, there’s no need to fully insure it. Many insurers offer seasonal policies that cover your bike for six to nine month periods of actual usage.
  • Take a motorcycle-safety course – Some states require these courses before they’ll issue a motorcycle license. Even if your home state doesn’t require it, you could be eligible for a 10% to 15% discount on your policy for completing one. Before signing up for a program, it’s a good idea to contact your insurer. Some companies only recognize certain programs. If you’ve been riding for a while, you might be able to get a discount for taking a refresher course.
  • Increase deductibles – A deductible is the amount of money you have to pay before the coverage kicks in. The higher your deductible, the lower your premiums. When choosing a deductible, make sure you can afford to pay out-of-pocket for any costs that are incurred before your insurance kicks in.
  • Ask about multiple bike discounts – If you’ve got more than one bike, or live with someone else who rides, you can usually get a discount. Likewise, it might be worthwhile to insure your motorcycle with the same company that covers your car.
  • Install anti-theft devices – If you financed your bike, you’ve probably taken out comprehensive coverage. Comprehensive protects against theft, fire, and other damages not caused by an accident. Some companies offer a discount on comprehensive coverage if you utilize an anti-theft device.
  • Maintain a good driving record – Insurance companies analyze your driving history to determine rates. How you drive a car usually indicates how you’ll ride a motorcycle. If you’ve only recently obtained a driver’s license, you might want to wait a year or two before getting a motorcycle. If you maintain a good driving record, your rates will be lower once you’re considered an “experienced” driver.
  • Ride with a group – Membership in a motorcycle club, such as the American Motorcycle Association, BMW Motorcycle Owners of America, Harley Owners Group or Retreads can also save you some money on your the insurance premium.