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Monthly Archives

June 2009

CASE STUDIES

By Your Employee Matters | No Comments

Falsification of Doctor’s Note Prevents FMLA Leave

In Smith v. Hope School, the Court of Appeals for the Seventh Circuit held that an employee’s falsification of medical paperwork precluded her from being entitled to FMLA leave.

After suffering a work-related injury, the plaintiff asked for and was given FMLA paperwork, which she gave to her treating physician. When the plaintiff picked up her FMLA paperwork from the doctor’s office, she added to the doctor’s description of her condition the words “plus previous depression” without the doctor’s approval or permission. Her doctor had never diagnosed her with depression. The plaintiff also backdated her portion of the signature line of the FMLA form and completed a separate Attending Physicians Statement in its entirety, listing diagnoses of muscle tension, chronic headaches, and depression.

Upon receipt of the form, the employer called the doctor about the possible alteration, and the doctor’s office confirmed the alteration. The employer did not approve the FMLA leave request, and the plaintiff was subsequently terminated for unexcused absences. The plaintiff sued the employer claiming interference with her FMLA rights. The Court held, however, that the employer had not interfered with the plaintiffs rights under the FMLA. Because the plaintiff added an undiagnosed condition to her medical care providers certification form, without the knowledge or approval of her physician, the employer was justified in denying her FMLA leave. The Seventh Circuit limited its holding to more egregious alterations of FMLA paperwork, and did not address the question of whether other, more insignificant alterations, such as correcting a typographical error or correcting or adding to a portion of the form with the knowledge and approval of a treating physician, would result in a similar ruling.

Bottom line: You now have the right to contact a health care provider’s office directly about the authenticity of any medical report. Unlike the rest of the country, California employers should not contact the employee’s health care provider directly to verify leave requests.

Paying to Show Up at Election Violates NLRB

In DLC Corp., D/B/A Tea Party Concerts, the NLRB confirmed that it’s a violation of the NLRA to pay off-duty employees to come to the workplace in order to vote in an NLRB election. The union sought to represent the employer’s stagehands, who worked primarily during the summer months. The union filed an election petition and election dates were designated.

A month before the election, the employer sent a letter to all eligible voters, in which it explained some of the procedures for the upcoming election and why the employer was opposed to the union. In addition, the letter encouraged off-duty employees to come to work and vote in the election and promised that the employees would be paid for four hours on that day. Ten of the 56 off-duty employees requested and received four hours pay for voting in the election. The union lost the election by five votes.

The Board held, under controlling labor law precedent, that a party engages in objectionable conduct by paying employees to attend the election unless the payment is reimbursement of actual transportation expenses. In this case, the employer explicitly offered to provide off-duty stagehands with four hours of pay in exchange for coming in to the polling location to vote. The Board held that the offer was substantial and was not linked to reimbursement for travel or other costs. Moreover, the number of employees potentially affected was not de minimis. A new election was ordered.

Wearing Headscarf Not a Reasonable Religious Accommodation

In Webb v. City of Philadelphia, the Court of Appeals for the Third Circuit held that a Muslim police officer’s request to wear a headscarf while in uniform would create an undue hardship for the employer and therefore, it was not religious discrimination to deny her request. The plaintiff, a female police officer, requested permission from her commanding officer to wear a headscarf (a khimar or hijaab, a traditional head covering worn by Muslim women) while in uniform and on duty. The headscarf did not cover her face or her ears, but would cover her head and the back of her neck. The police department denied her request based on its directive outlining the appropriate uniforms and equipment to be worn by the officers.

Based on the denial, the plaintiff filed a charge of religious discrimination with the EEOC and the Pennsylvania Human Relations Commission. While the matter was pending before the EEOC, the plaintiff arrived at work wearing her headscarf. She refused to remove it when requested and was sent home for failing to comply with the police department’s directive. These events were repeated during the next several days. The plaintiff was informed that her conduct could lead to disciplinary action. Thereafter, she continued to report to work wearing the headscarf and was suspended for 13 days. The Third Circuit agreed with the lower court’s holding in favor of the police department. Although Title VII of the 1964 Civil Rights Act prohibits employers from discharging or disciplining an employee based on his or her religion, an employer need not accommodate the employee if it would result in an undue hardship. The police department needed to maintain the perception of impartiality of its work force. Further, uniform requirements are crucial to the safety of officers. The Court held that the City would suffer undue hardship if required to grant the plaintiffs requested religious accommodation.

Bottom line: This court did an excellent job of explaining the factors to consider before declaring that clothing is inappropriate.

Thanks to the Worklaw Member firm of Shawe Rosenthal for helping with these case summaries.

EPL RISK TRIPLE HEADER

By Your Employee Matters | No Comments

According to data from the Bureau of Labor Statistics, the Department of Labor, Jury Verdict Research, and other sources, here’s the current state of employment practices liability exposures:

1. More claims have been filed. As unemployment rates hover around 10%, you can expect close to twice the claims being filed as when the rate stood at 5%. Many people will view the law as an “out,” whether it’s to protect an existing job by filing a frivolous complaint or rethinking their employment situation a few months after they’ve been trying to get a new job.
2. Jury verdicts are increasing. According to Jury Verdict Research, the verdict figure averages roughly $270,000, an all-time high. We expect this trend to continue. Remember, damage awards go up as people find it harder to return to work.
3. The percentage of the employee win rate is up. Traditionally, employees would win roughly 60% to 65% of the cases that went to trial. Approximately 40% of those verdicts are either overturned or reduced on appeal. According to JVR, the employee win rate has jumped to approximately 70%. We would expect that as the courts get more familiar with employment law, the percentage of cases thrown out or reduced on appeal actually diminishes.

There you have it — a triple header of risk. More claims, more expensive claims, and an increasing plaintiff win rate. Imagine your company getting hit with one of these verdicts during these tough times! If it’s one of those $1 million + verdicts, some companies might as well close their doors. Here’s what we’d recommend:

  • Get Employment Practices Liability insurance (EPLI). Despite the rise in exposure, the EPLI market remains soft. Better to buy this coverage now before the underwriting criteria and rates stiffen.
  • Audit your personnel practices. Get your HR act together when it comes to hiring people the right way, preventing harassment and discrimination, and managing leave and disability claims.
  • Update your policies and handbook, and let everybody know about it. If you can show an EPL carrier that you have your compliance act together, you might be able to get a reduction on your insurance rate.
  • Train your managers. All managers should know the basics of discrimination and harassment prevention. Depending on the size of your company, managers should also get ADA (15) and FMLA (50) training.
  • Train your employees. All employees should know the basics of harassment and discrimination prevention, as well as how to file a complaint. They should also know how to request disability accommodation or FMLA leave.
  • Conduct a survey. Make sure that employees understand what’s required of them and find out if any problems are brewing. We encourage HR That Works members to use the Employee Compliance Survey to help eliminate claims.
  • Ask for help if you’re not sure. These laws are complicated and carry huge risks. Smart companies pick up the phone and speak to an employment law expert to make sure that they get their acts straight. Again, we encourage HR That Works members to use the Hotline Service.

We’re the first to acknowledge that you can’t run your business if you’re always worried about getting sued. We also know it’s foolish to take unnecessary risks where the stakes are this high. Follow these steps and you’ll reduce the cost of your EPLI premiums, while avoiding wasted time, expense, and drama in the process.

HEALTH CARE COVERAGE AND WORK COMP LEAVE

By Your Employee Matters | No Comments

Many employers get confused about their obligation to continue health care coverage when someone is out on extended work comp leave. Here are some general guidelines to consider:

  • Workers comp law doesn’t require an employer to keep paying an employee’s health care when they’re on extended leave due to a work comp injury. An employer June not discriminate against someone on work comp leave. For example, if your practice is to continue health care coverage for two or three months hoping that someone can return to work, you need to maintain this practice with an employee on work comp leave or face a discrimination or retaliation claim.
  • Be aware of a Health insurance provision that employees must be “actively employed.” For example, if they haven’t worked for two months, they June not be actively employed. Even though you might have extended their coverage, if they have a significant claim, the carrier June decide to decline coverage, leaving them unprotected because you didn’t issue them a COBRA notice. Not a good spot to be in.
  • Remember, if you have more than 50 employees, the FMLA requires you to maintain extended coverage for at least 12 weeks — but only if there’s a reason to believe the employee will be returning to work.

HOW TO GIVE YOUR TROOPS A MOTIVATIONAL TALK

By Your Employee Matters | No Comments

Most leaders and managers are not natural presenters. When speaking to employees, keep these tricks of the trade in mind:

  • Be clear about the goal for your message. Try to drive home one to three points at the most. Anything more won’t be memorable. You can support this by putting up a visual summary of the points you want them to remember.
  • Connect with individuals. When President Obama gives a talk, he will focus on making eye contact with one person at a time. Rotate around the room and make sure to give your attendees a few moments of your time.
  • Start by building consensus. Make statements that you can see people agreeing with. Once you have everybody nodding their heads in agreement, then you can tackle more difficult subjects.
  • Give concrete examples. For example, instead of saying “Bob and his team have been doing a great job,” say “When Bob was able to push that project through on time despite all of the challenges his team faced, it was a big win for the company, resulting in a $100,000 on-time performance bonus.”
  • Don’t rush when you talk. Silence is one of the greatest tools of a presenter. When you want to make a point sink in, give your audience time for this to happen. You can always add statements like, “Does that make sense?” to enhance the buy-in.
  • Ask if there’s a “higher thought.” As the saying goes, “None of us are as smart as all of us.” If there is a better idea, you want to invite it so you know about it.
  • Watch your body language. First of all, make sure you have good posture. Although you don’t want to appear stiff, avoid flailing arm or hand gestures.
  • Solicit input from all attendees. If your goal is to get feedback at the meeting, make sure you solicit it from those who normally sit quietly. Don’t allow the conversation to be dominated by the few who always dominate the conversations.
  • Finally, ask for feedback. If there’s no time to do so in the meeting, then make sure you follow up afterward. Ask folks what they got out of the presentation and what they intend to do with it. Then set up a time or other method to obtain additional feedback.

By using these speaking techniques, you can go a long way to improving your leadership presentations.

EDITOR’S COLUMN: WHAT MAKES SENSE NOW?

By Your Employee Matters | No Comments

Here’s what I’m doing with my employees to manage more effectively in this economy.

These ideas make sense for your organization, no matter its size or industry:

  • Be very clear with workers about how the business makes and keeps money. Although I’ve always had open-book management, to help employees understand the numbers that much better, I had them watch the HR That Works The Accounting Game Webinar. You might want to have at least your management team do the same thing.
  • Refocus your objectives. This is a good time to reestablish your core values. In our recent webinar, The Integrity Dividend, Cornell University professor Tony Simons advised members to focus on no more than three to five core values. Make these points memorable and brand them as often as possible. Then ask a simple question: How does this activity help or hinder moving toward these values?
  • Increase your productivity. Eliminate any time wasters. Whether it’s a MySpace chat or shopping online, there’s simply no time for it in today’s workplace. We’re tightening up our standard operating procedures, job descriptions, benchmarks, and 90-day game plans. If you’re an HR That Works member and haven’t yet done so, please watch my Training Module on Performance Improvement.
  • Work on your business. In my business, the summer months are generally slow. Every year, we use it to work “on” the business. Right now, we’re all having an early summer and I believe that smart companies will use the slowdown to strengthen their operations. As the economy recovers, your company will be better positioned for growth and prosperity.
  • Live up to your commitments. Tony Simons reminded us about the risks associated with making “casual commitments.” In my workshops I talk about the trap of heroes being over committed. When we over-commit, we produce a lie and then the drama begins. So, be clear about what you’re committed to, don’t over commit — and then walk the talk.
  • Create some positive dramas. Lord knows we’ve had enough of the negative ones! Don’t allow your business to wallow in some collective pity party. Create a fun committee. Have a creativity day. Let your employees’ kids do artwork that can be displayed in one of your hallways. Create some “positive energies” and you’ll get some positive results!

WHAT EVERYONE SHOULD KNOW ABOUT LIFE INSURANCE

By Life and Health | No Comments

As any financial advisor worth his or her salt will tell you, if you have loved ones who depend on your income, a life insurance policy is a must-have. If you were to die, an effective life insurance plan will ensure that all your family’s financial needs will be covered—from the monthly mortgage and utility bills to your child’s college education. Without life insurance, your family could find themselves in dire straits if something happened to you.

Unfortunately, this advice often falls on deaf ears. In 2008, 68 million Americans still did not have any life insurance, according to the Life and Health Insurance Foundation for Education. On top of that, most people who do have life insurance don’t have enough coverage to fully support their family.

If you do not own any life insurance or have minimal coverage, here are three things you might want to consider:

1. Everyone needs life insurance.

Many people mistakenly assume they have no need for life insurance because their children are grown and no longer require financial support. What these people don’t realize is that life insurance coverage can be used for much more than supporting their loved ones.

For example, the payout from your life insurance policy could be used to cover your final expenses, including medical bills, estate taxes and funeral expenses. Considering that the average funeral costs $10,000 or more, do you want to leave this heavy financial burden on your loved ones’ shoulders?

You can also designate life insurance proceeds to help fund a grandchild’s college education or even donate them to your favorite charitable organization.

2. Three times your income June not be enough.

Some people say the best way to determine the amount of life insurance coverage you need is to simply multiply your annual income by three. However, this amount June not be enough. What if your spouse who is unable to work lives many more years after you die? Three years worth of income will not be nearly enough to support your spouse for another eight, ten or even 20 years.

This is why many professionals say the “three times your income” method is not always a good rule of thumb. Figuring out the right amount life insurance requires a comprehensive evaluation of your financial goals, debts, investments, lifestyle and habits.

3. You’re never too old to buy life insurance.

Many seniors believe they are too old to worry about life insurance because they no longer have loved ones relying on their income. But once again, a life insurance policy can help cover your final expenses after you die so your family is not left with the bill. Before you discount life insurance, it’s important to know all the facts. These valuable insurance policies can protect your family’s financial well-being, pay off your final expenses and even fund a loved one’s home purchase or college education.

Of course, whether or not you qualify and how much you will pay for life insurance depends on your age, health and the type of insurance you want to purchase. If you are considering buying life insurance, you June want to meet with a financial advisor or insurance agent, who can help you determine how much and what kind of life insurance you need.

One thing is certain: everyone should consider purchasing life insurance. After all, your family’s happiness could depend on it.

CALCULATE THE RIGHT AMOUNT OF LIFE INSURANCE FOR YOU

By Life and Health | No Comments

The goal of Life insurance is to ensure your family is protected financially if something were to happen to you. If your loved ones depend on your income, they could find themselves in serious financial stress if that cash flow was suddenly cut off.

Unfortunately, too many consumers mistakenly believe that they have enough Life insurance — when in actuality, they are severely underinsured.

Just look at the numbers: Americans have a combined $10 trillion worth of Life insurance coverage, according to a 2008 study by the American Council of Life Insurers. That June seem like an incredible amount of insurance — however, it’s still not enough. As a matter of fact, $10 trillion represents only 72% of our nation’s combined annual income, which totals a whopping $14 trillion.

Delving deeper than the lump sum

When you look at your coverage as a lump sum, it might seem like a lot of money. However, it’s important to consider that lump sum in relation to your annual income.

When determining whether or not you have enough insurance, ask yourself a few important questions: How much do I earn each year? How many years would I want my family to be covered if something were to happen to me? How much is going to be enough to cover all of their expenses? What standard of living do I want them to have?

The answers to these questions might lead you to a realization: That you don’t have enough Life insurance.

Calculating the right amount.

There are a few different ways to calculate the amount of Life insurance you need to protect your family adequately. Some insurance experts say you should simply multiply your annual income by three, while others say you need at least eight times your annual salary.

However, many professionals say this “income multiplication” method is not accurate enough. Because each family faces a unique set of circumstances and needs, you might want to consider some factors other than just annual income. Figuring out the right amount of Life insurance requires a comprehensive evaluation.

Here are a few things to take into consideration:

  • Monthly expenses: Tally up all your family’s monthly expenses, including your mortgage payment, car payments, utilities, groceries, food, clothing and any other costs. The death benefit on your Life insurance policy should be able to cover these expenses for at least a few years. This will ensure that your family will not undergo a decreased standard of living if you were to die.
  • Surviving parent’s income: If something were to happen to you, would your spouse need to work to support your children? This could be a problem if you have young children or a disabled child who needs extra attention. This will ensure that the surviving parent doesn’t have to work — or at least not until your children are older.
  • College tuition: Do you want to fund your children’s college education? If so, you should also factor this into your Life insurance calculation. It would probably be difficult for the surviving parent to pay college tuition on a single income.
  • Factoring in inflation: Don’t forget to consider the cost of inflation. You can expect cost of living to increase about 4% to 5% each year. That means if you purchased a Life insurance policy many years ago, the death benefit might not be enough to pay for today’s cost of living — let alone tomorrow’s.

Figuring out how much Life insurance you need to protect your family is a complex process that involves considerable research and thought. If you’re struggling to figure out how much Life insurance is enough, consider meeting with one of our experts. We can help you to determine how much insurance you need and what you can realistically afford.

FAQ’S ABOUT HEALTH SAVINGS ACCOUNTS

By Life and Health | No Comments

A Health Savings Account (HSA) is an alternative to traditional Health insurance that offers consumers a different way to pay for their health care. HSAs enable you to pay for current and future health expenses on a tax-free basis, while an attached high-deductible insurance policy protects you against catastrophic expenses.

Here are answers to some common questions concerning HSAs:

Can anyone open an HSA?

To be eligible for an HSA, you must be under 65 years old, and covered by a Qualified High-Deductible Health Policy (QHDHP).You are ineligible if covered by another Health insurance policy (except coverages such as Cancer, Dental, Disability, Long-Term Care or Vision insurance) that isn’t a qualified high-deductible plan.

Where can I open an HSA?

Accounts can be established with banks, credit unions, insurance companies, and other approved companies. Your employer might also set up a plan for its employees as well.

What is a QHDHP?

To qualify the policy must meet current IRS requirements. For 2009 the requirements are as follows:

  • The deductible must be at least $1,150 for individuals or $2,300 for families.
  • The annual out-of-pocket expenses cannot be greater than $5,800 for an individual or $11,600 for a family. These figures include the deductible and any co-insurance, but not the premiums.

How much can I contribute to an HSA? What happens to unused funds at the end of the year?

Limits are updated annually by the IRS. For 2009, the contribution limits are $3,000 for singles and $5,950 for families. However, if you are 55 or older, you can contribute an extra $1,000.

The unused balance in an HSA rolls over automatically year after year. You won’t lose your money if you don’t spend it within the year.

How do I receive the tax benefits?

If you have an HSA through your employer, you might be able to make pre-tax payroll contributions. Otherwise, your contributions will be deductible when you file your taxes, even if you don’t itemize. Also, you are eligible to make a full contribution regardless of income unlike IRAs.

What is a qualified medical expense?

Qualified medical expenses are defined in IRS Publication 502, Medical and Dental Expenses (available at www.irs.gov).

Can my HSA be used to pay for a family member’s medical care?

Yes, you June withdraw funds to pay for the qualified medical expenses of yourself, your spouse, or a dependent without tax penalty.

Can I pay Health insurance premiums with an HSA?
You can only use your HSA to pay Health insurance premiums if you are collecting unemployment benefits or you have COBRA continuation coverage through a former employer.

Can I use the money for non-medical expenses?

Yes, but you’ll be hit with a 10% penalty plus income tax on the amount of your distribution. However, after age 65 the 10% penalty is waived on non-qualified distributions which enables your HSA to effectively serve as a retirement supplement.

I have an HSA but no longer have HDHP coverage. Can I still use the HSA?

Once funds are deposited into the HSA, the account can be used to pay for qualified medical expenses tax-free, even if you no longer have HDHP coverage. The funds in your account roll over automatically each year and remain indefinitely until used. There is no time limit on using the funds.

With an HSA can I still contribute to an IRA?

Absolutely, your HSA contributions won’t affect your ability to contribute to an IRA in any way.

LOW COST OPTIONS TO BURGLAR PROOF YOUR HOME

By Personal Perspective | No Comments

If you wanted to, you could build a panic room for protection from robbers or kidnappers. But what about protecting your belongings when you’re not home? Perhaps you really don’t want to install an alarm system — or Junebe you do. Either way, here are some no-cost and low-cost tricks to make your protection more complete, and help keep your belongings away from thieves.

Outside Areas

Begin with the landscaping, which is the first thing a burglar sees and the first thing he will assess. To make it harder for a burglar to hide and gain entry:

  • Prune lower limbs from any big trees.
  • Trim bushes so a person could not use one for cover.
  • Move any decorative trellises away from windows or porch roofs so they cannot be climbed for second-floor access.
  • Consider planting thorny bushes below first-floor windows, and be sure they are close enough to the house so that an adult could not wedge behind one to jimmy a window without getting scratched up.
  • Remove any trees or bushes beside exterior doors. They can hide a burglar from passing cars and they can also hide intruders from your sight when you answer the door.
  • Make sure all ladders and tools are secure inside the house, not inside a garden shed.
  • If your yard is dim at night, install the brightest, biggest lights you can afford for all entries to your house. Use them. Turn them on when you leave the house at night; set up motion detectors to turn them on when you are away

Inside the Home

Windows generally provide easier access for criminals than doors. Here are some window tactics:

  • Buy special window locks at your hardware store for all first-floor windows and any second-floor windows accessible from a porch or garage roof. DO NOT hang the keys on clever little hooks or nails beside the window. Crooks know that one and will simply break a pane and reach around until they find the key (but be sure the whole family knows where the keys are in case of emergency).
  • Don’t demonstrate the easiest window to enter by climbing in it. If a family member regularly forgets his or her key, consider leaving keys with a trustworthy neighbor for emergency use. DON’T CLIMB IN THE WINDOW EVER. Even amateur burglars can figure that one out, especially if they’ve seen you do it and figure the neighbors won’t notice.
  • For sliding windows, use the same techniques as for sliding doors, below.

Some burglars like to enter like a guest, through the door. Here are some ways to discourage that sort of burglar:

  • Make every entry door solid core wood or metal; hollow-core doors are easily kicked in. The door should fit the frame snugly, with no more than 1/8 inch between door and jamb. If the gap is larger, replace the door, or install a heavy-gauge metal strip available at the hardware store.
  • Replace doors with decorative glass windows or panels. If that’s too expensive, install break-resistant plastic panes, or install a decorative grille over the glass.
  • It’s unlikely, but if an entry door has hinges on the outside, rehang it with hinges inside. If that’s impossible, reinstall it with pinless hinges. Burglars can pop pins and take off the door to enter.
  • Make sure locks on all sliding glass doors are sturdy. Then use a solid stick of wood or broom handle in the track of the closed door.
  • Adjust door rollers so the door cannot be lifted out of its track.

A Few More Hints

  • Close your garage door when you’re away, whether or not it also leads into the house. An empty garage equals “no one’s home.” Cover garage windows completely with shades or curtains so no one will know if there’s a car in there or not.
  • Don’t leave notes on entries; if you were home, you wouldn’t leave a note. Not even for FedEx.
  • Don’t hide keys in the yard; burglars know all the usual places, even those cute little garden toads with hollow bellies.