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Monthly Archives

September 2014

Executive Physicals

By Your Employee Matters | No Comments

The question “Can we still provide executive physicals or is that now considered discriminatory?” was posed to the ThinkHR Hotline team recently. Here is the answer provided:

There are existing regulations under the Internal Revenue Code Section 105(h) nondiscrimination rules that allow benefits for “medical diagnostic procedures” to be paid to highly compensated employees without giving the same benefit to the non-highly compensated employee group. Under 26 CFR 1.105-11 (g) – SELF-INSURED MEDICAL REIMBURSEMENT PLAN., the rules allow that distinction for an employee class if the procedures are:

  • Performed at a facility that only provides medical or “ancillary services”;
  • For routine medical examination, blood tests, X-rays and similar tests; and
  • Do not include treatment, cure, or testing of a known illness or disability, or treatment or testing for a physical injury or specific symptoms.

Most benefits experts believe that this section of the Code allows for executive physicals that feature routine medical exams, blood and other diagnostic tests, and as long as no treatment is provided, then the nondiscrimination rules will not apply. The Affordable Care Act contains provisions to extend nondiscrimination requirements to fully insured plans, but that portion of the regulation has been delayed until further notice.

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.

Making Ethics a Cornerstone of Your Company Culture

By Your Employee Matters | No Comments

Ethical workplaces start with the leadership of a company. Leaders play a critical role in creating and maintaining a company culture and fostering an environment that supports ethical practices.

In small businesses, leaders are typically more visible to employees, and the manner in which they model the organization’s ethics and values is readily observable to all. Whom the leader hires, what programs and activities he or she supports, what behaviors he or she exhibits personally, and the rewards or criticisms given to others are signals to the rest of the organization of what’s really important in terms of company culture, values, and ethics.

Leaders must “walk the talk” and lead by example to create and foster an environment that embeds ethics into the company’s culture and includes integrity, honesty, and doing the right things right when getting work done within the company.

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.

Handling Suspected Employee Drug Use

By Your Employee Matters | No Comments

How does an employer handle a potential issue where an employee is suspected to be using illegal drugs?

While you would want to have “just cause” or reasonable suspicion prior to “accusing” an employee in this case, nothing bars you from having a conversation about observed behavior in the work place. Exercise caution as to the business necessity, in the event a prescription medication may be at cause, as this can be covered under the Americans with Disabilities Act (ADA).

Reasonable suspicion is not merely rumor or speculation but rather based on specific, objective facts and rational inferences from observing an employee’s behavior. Specific objective facts and rational inferences drawn from those facts must justify reasonable suspicion. Evidence sufficient to justify reasonable suspicion does not need to rise to the level of full probable cause. This may include alcohol on the breath, lapses in performance, inability to appropriately respond to questions, and physical symptoms of alcohol or drug influence.

According to various sources, examples of drug and/or alcohol abuse include, but are not limited to, the following signs:

  • Odor of alcohol
  • Odor of marijuana
  • Slurred speech
  • Fast speaking out of the ordinary
  • Flushed, swollen face
  • Red or runny eyes or nose
  • Pupils dilated or constricted, or unusual eye movement
  • Lack of coordination
  • Tremors or sweats
  • Weariness, exhaustion
  • Sleepiness, or unusual hyper action

In reference to testing for substances based upon this, even with an accumulation of facts and rational implications to be used for conducting a “reasonable suspicion” test, it can be dangerous for the employer to order an employee to submit to drug testing. It is wise to have two separate witnesses to the behavior, including a supervisor; to have all supervisors trained to detect signs of usage (this does not have to be a certified training); and to escort the employee to and from the lab involved. Important to note, is that the employer must have a substance abuse plan and policy in place before taking any such action related to testing.

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.

Editor’s Column: Six Techniques You Can Consider Using Before Your Next Presentation

By Your Employee Matters | No Comments

Whether you’re making a sales presentation or one to your executive team, here are some tips I have learned speaking to hundreds of groups that can help your presentations.

  1. Be yourself – Don’t try to copycat another person’s style. If you’re humorous by nature then bring that into your presentation. If you’re historic by nature then be your serious self.
  2. Think about liking your audience…before you speak to them – What type of energy do you bring into a presentation? Remember you communicate with people not just on a logical level but an emotional one as well. Your goal is to create a connection. Your work to that goal begins before you ever speak to somebody. Go into the presentation focusing on liking your audience and they will like you in return..
  3. Ditch the power paragraph – It’s called PowerPoint for a reason. Keep your messages simple and visual. If you’re going to use a PowerPoint presentation use few words to communicate and idea and using pictures in place of words is even better. Look at the book Zen Presentation and you will get a deeper understanding on what I mean.
  4. Watch providing too much information– As a high content speaker I face this challenge. Instead of trying to tell people everything you know, try to focus on the three things that will be the greatest benefit to them. To an extent, you can serve people before or during the presentation to help focus your content even better.
  5. Engage in feedback – Ask people to raise their hands if they agree with you. Ask them to share any ah-ha’s gained from the presentation. Ask them what follow up information they would like from you.

Be Prepared –Last, one thing I will always be is highly prepared for any presentation I give. That is part of the training of a trail lawyer. What you don’t want to do is fumble around during your presentation. Make sure to practice your presentation over and over again until you get it right. Then find somebody to present it to whether it’s your dog, cat, kids or a herd of cows. They will be a non-judgmental audience. Once you get comfortable to your presentation without judgment then solicit it to friends and colleagues.

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.

LEEDS and Risk Management

By Construction Insurance Bulletin | No Comments

LEEDS protocols can be tough taskmasters. The increased record keeping and verification requirements stagger an already paper-choked industry. So how can you comply with LEEDS in a risk managed culture?

First, organize. Separate the LEEDS protocol into two main concerns. Materials, products and installation issues; and waste and recycling issues.

Check deliverables for compliance, waste is in the details. Do the materials or products match the specification? If not, source the correct item and send back the deliverable. Don’t wait for the mismatched product to show up on site.

Source materials as close to the site as possible. One of the more difficult LEEDs requirements concerns transporting materials long distances. Transportation and sustainability coexist uncomfortably.

Check every delivered item to confirm compliance with the LEEDs requirements. You may need the documentation to earn the correct ranking.

Plan trash reduction, recycling and removal from the site. Confirm these rules are followed by every contractor. Most construction scrap material can be recycled. Excess product can either be left on site as replacement parts for maintenance or taken to the next site. The next site, however, may not spec that product.

Risk management begins with identifying and assessing risk. Checking deliverables and managing waste implies a gatekeeper on duty to record everything in and everything out. This solution is exactly correct.

Risk reduction, or in this case, increased compliance implies a coordinated effort. Take a leadership role in recycling and trash reduction. Be innovative. Reward active participants in some small way.

Reducing the volume of excess material brought to the site might require simply limiting storage or lay down space. Force subcontractors to right-size their incoming material orders.

Finally, commission the final product. Commissioning companies find defects or confirm completion. Either way, you have the opportunity to correct LEEDs defects or rejoice in a job well done.

Leeds is about documenting the process. Confirm and document everything, every day on the job site. The audit will move along much smoother.

Brownfield Sites: coordinate civil and environmental engineering or pay later

By Construction Insurance Bulletin | No Comments

Brownfield sites are environmentally impacted properties which have been okayed for development based on risk assessment rather than strict regulatory compliance. So, if it’s cleared, what can go wrong?

Coordination Problem #1: If the cut soil cannot be reused on the site, and it is impacted soil, you still pay an environmental tipping fee at a disposal facility, if they accept the soil.

Civil engineers do not always know where the impacted soils are, or what to do with them. Environmental engineers do not always know where the building excavations are planned, utility trenches or storm water structures go.

A better plan can be devised if both sets of engineers give input.

Efficient utilities with a minimum impact on contaminated soils. One or the other costs money.

Coordination Problem #2: Will laborers be working in contaminated soil? Any confined space or similar conditions may require respirators and protective clothing and gloves.

The civil engineer may not know the sanitary sewer at eight feet below grade will touch impacted soils. When the fumes enter the trench, work must stop. The trench must be ventilated. Special personal protection or specialty crews must be brought in.

Wouldn’t you rather know these conditions in advance?

Coordination problem #3: Where can you take the soil?

If the environmental engineer knows what soil is likely to be disturbed, they can sample and test the soil for landfill criteria. This process takes about ten days of laboratory time. Spend the money in advance rather than shutting down the site waiting for manifests to move the soil.

More coordination between civil and environmental engineers is required than is often allowed. Together, they can resolve many costly delay problems in advance.

And, it doesn’t hurt to have the structural engineer or architect in these meetings. As they may be unaware of the issues raised by their design, coordination often leads to a better project.

Service or Completed Operations: define your business

By Construction Insurance Bulletin | No Comments

The construction business evolved over the past many years to a more brokered business. Thirty years ago a general contractor landed on a site with a dozen workers to build most of a building. Now, specialists combine to do everything from site clearing to painting stripes on the parking lot.

The general contractor and some of the subcontractors handle paperwork, verify completion, and handle payments to subcontractors. They’ve become service companies rather than construction companies. Construction managers rather than builders.

Insurance recognizes this change as moving from a completed operations liability risk to a professional liability driven risk. So, what does that mean to you?

General liability insurance covers the site premises and the process of physically building a structure. Professional liability covers issues concerning planning, designing, verifying designs and plans, surveying, advising, coordinating and most compliance. The two policies do not overlap in any significant way.

Even if you are not technically a design build firm, if you verify design, or if you interpret the design in any way to build, or if you substitute or allow the substitution of materials or products to build, you are redesigning the building.

Under current energy codes, energy to light a room is restricted. If you substitute or allow to substitute a less energy efficient or higher wattage light fixture for a more expensive, hard to find specified fixture, you changed the energy design, the functioning of the energy system, and will fail to meet compliance with the energy code on commissioning. Sounds harsh, but that is today’s professional liability risk.

Rethink your procedures beginning with the decision: which type of business do we want to be?

If you want to build structures, consider a protocol which sends a “verify the source” request for information on unknown or unfamiliar materials or products. And think about getting some professional liability insurance anyway for those unusual field decisions made to expedite completed operations.

Directors and Officers Liability Insurance: how’s your estimating skill?

By Construction Insurance Bulletin | No Comments

Getting the job. It’s a tough task where too much optimism can cost dearly, too little can cost receiving the bid. If too many low bids occur, who’s responsible to the stockholders?

Because the construction industry works by a bidding system rather than a negotiated contract, errors can be difficult to remedy. Leaving out the painting number on a half-million foot office building costs dearly.

Computerization of the bid process has helped and hurt. The program will not allow forgotten inputs, but people tend to believe a computer generated number.

Quality control for bids is essential for survival, both for the estimator and the executives. The estimator calculates the bid, but the executive signs the contract.

The decision to sign the contract drives the scrutiny if money is lost. Directors and officers insurance protects the executive financially when stockholders seek redress in response to a catastrophic contract.

Getting fired is the lesser issue to being sued for incompetence or fraud. The directors and officers exposure boils down to one unfortunate fact. The covered position must make decisions in real time ahead of perfect knowledge; the claimant has the benefit of hindsight.

You can protect yourself by knowing your duties as a director or officer:

1. You must act in good faith and give prudent care in your decisions.
2. You are required to be loyal to the business.
3. Disclosure: you must disclose material facts to regulators, other board members, officers, creditors,
bondholders, stockholders, and other potential investors.

Implement a policy of redundant checks on all contracts, bids, offerings, scopes of work, payments, or any other routine agreements which can lull people into complacency. Routine hides defective work well.

Spot check bid numbers against industry averages, or have this capacity in the computer program. If you’ve been in the industry awhile, check your gut instinct against the line items in the bid. If they don’t make sense, recheck. Consider every contract your responsibility, otherwise they may come back to haunt you.

When Can I Use Unemployment Insurance?

By Employment Resources | No Comments

Most employers have to carry unemployment insurance on their employees. Do you really understand, though, when you can use your unemployment insurance benefits? Knowing the answer to this question can help you make important decisions about using this coverage.

What is Unemployment Insurance?

Unemployment Insurance is designed to help you cover expenses when you’re between jobs. It usually gives you a percentage of your working wages rather than a full paycheck.

Unemployment laws also vary by state. Although they follow guidelines from the federal government, each state’s Department of Labor determines how much coverage workers get when they file for unemployment.

Who’s Eligible to Collect Unemployment Benefits?

If you’ve been laid off or fired and are not at fault, you may qualify for unemployment. You will generally be disqualified from receiving unemployment, though, if you:

*Quit without having a good cause,
*Are fired for misconduct,
*Resign because of illness,
*Become involved in a labor dispute or
*Leave to get married or attend school.

What are Unemployment Insurance Limits?

Most states allow you to receive unemployment benefits for up to 26 weeks. In cases, you may be eligible for extensions based on federal guidelines or your state’s unemployment rates.

When Should You File?

As soon as you’re laid off or let go from your job, file for unemployment. It often takes two to three weeks for benefits to start, so a delay in filing means a delay in receiving benefits.

Also, realize that unemployment is not a free ride. While you can use the money to pay any expenses, you typically have to prove that you’re looking for employment to receive ongoing benefits. You’ll also have to report any hours you worked.

Unemployment insurance gives you some financial assistance if you lose your job.
Don’t quit and expect to be compensated, though. Discuss this coverage with your employer, insurance company or Department of Labor if you need further clarification.

What Exclusions Does My Disability Insurance Include?

By Employment Resources | No Comments

If your employer offers disability insurance, you can use it when you become injured or too ill to work. You need to know the exclusions, though, as you understand the coverage and payment this insurance offers. Otherwise, you could become disabled and be unable to take advantage of your insurance policy.

Short-Term and Long-Term Disability Insurance Exclusions

For starters, both short-term and long-term disability include similar exclusions. These policies will not cover disabilities that occur because of:

1. Self-inflicted injuries that occur when you’re sane or insane,
2. Acts of declared or undeclared war,
3. Criminal acts you commit or attempt to commit,
4. Civil commotion, riots, insurrections or rebellions and
5. Motor vehicle accidents that occur when you’re driving while under the influence of alcohol.

Two Potential Exclusions

The two types of disability insurance also have an individual exclusion. Short-term disability insurance typically excludes illnesses or injury related to your occupation, but those illnesses and injuries are covered by workers compensation. Long-term disability insurance will not go into effect if you’re incarcerated because of a criminal act or public offense.

Other Disability Insurance Limitations

In addition to these short-term and long-term exclusions, your disability insurance policy might only provide two years of coverage for mental-nervous disorders. So, if you’re disabled because of stress, depression, anxiety, dementia or another mental-nervous disorder, you only receive disability benefits for two years. Additionally, your policy might limit coverage for drug or alcohol addiction. If you suffer from a disabling addiction, your policy may either exclude coverage or cover you for only one year.

Despite these exclusions, disability insurance provides valuable assistance if you become disabled and cannot work. Ask your employer if he or she offers short-term and long-term disability insurance. Then, read your policy carefully and understand its exclusions and limitations. If you don’t have disability coverage, talk with your insurance agent about purchasing a disability policy today.