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Monthly Archives

October 2014

Motivate the Demotivated

By Your Employee Matters | No Comments

Employer after employer is faced with hiring low wage earners who are seldom motivated toward high performance. Except for workplace newbies, most low wage earners are there precisely because of their lack of motivation, creating a classic Catch-22 for employers. If it’s true, as the saying goes, that “I’d rather have ignorance on fire than knowledge on ice,” how can you turn up the burners on low wage earners without increasing turnover? Here are three suggestions:

  1. Pay them a bit more. There’s no better example than the In-N-Out hamburger chain located throughout the Southwest. They attract the best in terms of low-wage talent largely by advertising that they pay at least a dollar per hour more than their competitors. Because low wage earners are motivated by survival, security, and the need to belong (in that order) the extra pay makes far more difference to them than it might to someone earning three to five times that amount. Pay them the extra money with the understanding that they’ll be excellent employees. Take a look at their web site www.in-n-out.com.
  2. Show them that there’s a way up. Whether it’s a landscaping business, a retail operation, or telephone bank, every company needs managers and supervisors. Show employees that there’s a career path for them if they follow guidelines and expectations, including training and experience. Offer examples of other employees who have climbed the corporate ladder and the path they had to follow. Have those employees act as spokespeople for career motivation.
  3. Help them belong to something larger than themselves. A classic example is Service Master: They don’t just clean buildings; they provide Service. A sense of belonging enhances cohesiveness and communication, whether it comes from a corporate theme, company uniforms, team sponsorships, or community activities. By the way, don’t assume that you know what your employees want to belong to: Ask them.

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.

FMLA and Continued Benefits

By Your Employee Matters | No Comments

This question was recently asked of the ThinkHR Hotline team: What benefits must be continued while an employee is on Family and Medical Leave Act (FMLA) leave? What should we do with an employee who is not making his share of the copayments while out on leave?

Their expert answer: Family and Medical Leave Act (FMLA) regulations require that employers continue to provide group health benefits under the same terms and conditions as if the employee was actively at work. There is no requirement under the FMLA to continue other types of benefits offered by the employer. Whether or not an employee’s other benefits continue depend on an employer’s established policy. Any benefits that would be maintained if the employee was on another form of leave should be maintained while the employee is on FMLA leave.

Part of the requirement to continue health insurance benefits “under the same terms” means that both the employer and employee must continue to pay their portions of the group health insurance premium, unless the employer has a different policy for managing premium payments during leaves. The employer is required to notify the employee of the payment requirements while on leave, including the amount of the payment, date due, and where the payment should sent. If the employee fails to pay his or her portion of the premium, the employer may be able to suspend group health benefits for the remainder of the FMLA leave.

In order to suspend benefits for someone on FMLA leave, the employer must allow the employee a 30-day grace period to make payment after the original payment due date. The employee must receive written notice at least 15 days prior to the actual suspension, and the best employer practice is to send a pending suspension notice once the employee is 15 days past the payment date. One important item to note is that even if an employer suspends an employee’s health coverage under these terms, the employer is required to restore coverage without penalty or delay once the employee returns from FMLA leave to a level of coverage that is equal to what the employee had prior to the leave and had not missed premium payments. If the employee does not return from FMLA, the employee whose coverage was suspended for failure to pay premiums during the leave would be eligible for COBRA continuation coverage.

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.

Rejecting Treating Doctor’s Opinion Could Violate ADA

By Your Employee Matters | No Comments

An employer who rejected the return-to-work release issued by an employee’s treating physician in favor of its own doctor’s conflicting opinion may have violated the Americans with Disabilities Act.

Facts of the Case: In Williams v. Baltimore City Community College, an employee with a degenerative eye disease took leave under the Family and Medical Leave Act for surgical treatment of her condition. When her FMLA leave expired in September 2008, she was required to submit a doctor’s note substantiating the need for additional leave and to appear for a Workability Examination by the State Medical Director. Her treating physician recommended a return-to-work date of December 10, 2008. However, the State doctor determined that the employee’s symptoms were unlikely to improve enough in the foreseeable future to allow her to return to work on that date. The employee was subsequently terminated, and she brought suit against the employer for discrimination and failure to accommodate under the ADA.

The Court’s Decision. The Court rejected the employer’s argument that the employee was not disabled. Under the ADA, a person is disabled if she: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. In this case, the Court found that the employer could have regarded the employee as having such an impairment – although the employee’s own doctor stated that she could perform the essential functions of her job starting on December 10, the employer chose to discount that opinion and rely instead on the State doctor’s opinion that the employee could no longer perform her job.

The Court, however, dismissed the employee’s claim that the employer failed to accommodate her disability. Under the ADA, there is “no obligation to provide an accommodation to an employee who is simply ‘regarded as’ disabled.”

Lessons Learned. The ADA does not specify whether the doctor providing medical information to the employer should be the employee’s provider, or whether the employer may select the doctor to evaluate the employee and respond to the request for information. The EEOC expresses a preference for the employee’s own doctor, but acknowledges that the employer may choose the doctor if the employee’s doctor does not or cannot provide sufficient information to substantiate the disability and/or need for accommodation. An employer who has chosen to send the employee to its own doctor, in addition to receiving information from the employee’s doctor, faces a conundrum when the doctors’ opinions conflict. Under the EEOC’s approach, the employer should not simply reject the opinion of the employee’s doctor without any indication of why such opinion is deficient – and without giving the employee’s doctor a chance to address any such deficiencies.

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: Frustrated with HR People

By Your Employee Matters | No Comments

I find myself frustrated because companies and those in the HR Function won’t allow me to help them as much as I can. I’m frustrated when I see the trivial feud of HR Executives truly trying to make a difference and be excellent. I’m frustrated when I speak and exhibit at a conference and the attendees are more interested in getting their CEU credits and whatever you’re handing out at your exhibit than they are truly learning things from the speakers or the vendors. I am frustrated because HR Executives as a group have not exhibited the dedication, vision, nerve, defiance, edginess, etc. that I like to be associated with. And unfortunately, we have relegated the concept of relationships at our companies to these executives.

HR has to take it on the chin and realize that there’s good reason for the harsh criticism. They have to take it as a wakeup call and an opportunity. HR represents an incredible opportunity that few organizations or individuals are committed to. Those who are committed to the process of building human excellence will generate additional values at their companies and in their personal lives. So, there’s a choice, either you kick ass at HR and receive the rewards or you stay in your comfort zone and continue to get run over.

Perhaps the two greatest impacts on HR over the last few decades have been technology and the law. It’s gotten to a point where we can access all levels of data regarding our operations. Human Resource Management System and Human Resources Information Systems have been designed for every level of size and complexity. Technology has also been utilized to organize performance management. Managing a HRIS system is like managing information on steroids. The reality is that while many of these companies pump the time saving advantages of being able to pull various reports, few executives ever find the time or reason to pull them. As a result, the technology is utilized at its lowest common denominator.

The most drastic employment law changes in the workplace have occurred during my career. When I began my legal career in 1983 most of the law was concerning union work. Few people brought sexual harassment, discrimination, or other statutory claims. That was primarily handled by agencies such as the Federal EEOC and the California DFEH. Over the last 30 years, the amount of law that one has to know related to the HR function has easily quadrupled. Go to an HR conference today and you will see at least half of all presentations being related to compliance.

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.

Key Man Insurance

By Business Protection Bulletin | No Comments

7655 Key Man Insurance

Small and medium-sized businesses often have employees that are “stars.” Sometimes the star is the CEO or president, other times there is a salesperson who consistently outsells every other sales team member by a two to one margin. A software company has a star coder whose ideas led to your product being a number one editor’s choice. The point is that most companies have an employee or two that helps their business thrive. What happens to your business in the short-term if a star employee, referred to by the insurance industry as a “key” employee dies?

Death is an issue that most people do not like discussing; so, many small and medium-sized businesses do not have detailed succession plans, and key person life insurance remains an unresolved issue. It is a discussion that helps your company survive hard times that follow the death of a key person.

What is Key Person Life Insurance?

Keyman life insurance protects a business from economic loss relating to the death of a key employee. The company buys the insurance, owns the policy, and is the beneficiary of the policy in the event of the sudden death of the insured. Payment from the insurance company to the business is a lump sum, and there are no restrictions on how the company uses the money. Most companies use the money to stabilize the business until they find the key person’s replacement.

Types of Keyman Life Insurance

Businesses gravitate to two kinds of policies for key employee life insurance.

Term Life Insurance: startups favor this type of policy. As startups always try to conserve cash, term life insurance is cheaper than any other kind of personal life insurance.
Policies that build cash value: Whole life or universal life insurance builds cash value that increases the cash value of the policy and is an asset on the company’s book. The company can get access to the excess cash value of the policy at any time for any purpose as the money from the cash buildup belongs to them.
Life insurance premiums vary between companies and smart companies comparison shop for the best insurance program.

The discussion is uncomfortable, but, if you do not have key man insurance, act now.

If Your Idea is That Great, You Need Intellectual Property Insurance

By Business Protection Bulletin | No Comments

You have an idea that is unique. Perhaps it is a new process, or you invented a machine that works in a new way, maybe you wrote a book, computer code or a song. All of the above are examples of what intellectual property is.

IP Infringement and IP Insurance

When someone steals your intellectual property, it is infringement; there are several kinds of intellectual property infringements. They are:

* Patent infringement
* Copyright infringement
* Trademark infringement
* Service mark infringement

If you are a victim of any kind of infringement or accused of infringing someone’s intellectual property you face staggering legal bills. To protect your company and yourself from huge legal bills you must do two things.

1. Register your invention with the United States Patent Office (USPTO). Most people seek the help of a patent attorney, as navigating the USPTO is difficult. Through the patent office, you also record work that has protection by obtaining a copyright, trademark, or service mark.

2. Purchase intellectual property (IP) insurance. There are two kinds of IP insurance. One is defensive IP insurance that protects if you are the accused in IP infringement. The other is the offensive IP insurance which helps pay your legal fees if you own intellectual property that someone stole (infringed) from you.

Many small and medium-sized businesses count their intellectual property as their most valuable asset. If you value your IP, you need an Intellectual Property insurance policy that is both offensive and defensive.

Defensive IP Insurance

According to a study by Price, Waterhouse, Cooper more than 5,000 patent infringement lawsuits happened in 2012. Of them, three plaintiffs received judgments against defendants in excess of $1 billion. The number of lawsuits and the amount of the awards continues on an upward trajectory.

When you have defensive intellectual property insurance, the insurance company pays for your defense. If you lose, they help pay. The study concludes that IP lawsuits will continue to proliferate.

Offensive IP Insurance

If someone infringes your Intellectual Property, your recourse is a lawsuit. Legal fees for the plaintiff in an IP lawsuit are also considerable. An offensive IP insurance policy helps pay the legal costs of recovering compensation from whoever infringed your Intellectual Property.

Protection from Risks on the Internet

By Business Protection Bulletin | No Comments

Does your business have a website, a presence on social media (Facebook, Twitter, Instagram etc.) or anywhere else on the Internet where consumers can express their point of view you post responses? If you do, you need a Special Insurance Policy to cover you, your employees, and your company from claims of defamation (slander and libel).

Slander and libel lawsuits have grown familiar, thanks to the Internet and responsible insurance agents advise clients at risk to get the coverage.

What is Defamation?

Defamation is a tort (wrongdoing) that harms the reputation of an individual. Many states have rulings that the defamation is often unintentional and not designed to injure anyone’s reputation. Nevertheless, states also recognize the claims made for negligent or reckless defamation.

Libel means written defamation, and slander is oral or spoken defamation. In a business setting, if a clerk falsely accuses a shopper of shoplifting and is heard by others making the accusation may have committed libel (unless the goods are found on their person). Libel is a written statement that is untrue.

The only absolute defense against defamation is the truth. The exception is if the defamatory statement is about a public figure. Then there is a higher bar for winning a lawsuit. The plaintiff must prove that the statement is a known falsehood to the writer and made with actual malice. This protection was for the benefit of journalists who wrote unflattering but truthful pieces about public figures.

If your business, an employee, or you are defendants in a slander or libel action, it is almost a certainty that there will be costs associated with defending you.

Why do you need Defamation Insurance?

As in the example above, statements made publicly and are untrue can bring a slander lawsuit against your employee, you as the owner, and the business as an employer.

However, the advent of social media makes the risk greater, yet not risky enough to ignore the marketing value of an online presence. There are many of what ifs.

What if a customer makes a libelous comment on your website blog about a competitor? Are you responsible?

What if an employee makes a libelous comment in response to a customer? Is your business responsible?

What if a customer libels another customer on your blog? Are you responsible?

The possibilities are endless but not using Internet marketing techniques is not an option — even if you follow best practices.

At least, you may go to court and need to defend your employee and your business. If the plaintiff wins the case, the damage award can be costly, and some states allow for punitive damages.

Defamation insurance covers the cost of defense and the damages and punitive awards up to your policy limit.

You do need defamation insurance in today’s litigious world.

Even If It’s Not Raining You Need an Umbrella

By Business Protection Bulletin | No Comments

You own your home, have your own business, and drive a new car. Though you are not rich, you are comfortable. It will be a shame to lose it all if someone sustains injuries by your car or at your home or place of business.

You have insurance you say; you have standard auto liability insurance. The limits are $100,000 for a single person and a total of $300,000 for multiple people. Suppose you are responsible for any accident involving a shuttle taking ten people to the airport. Three hundred thousand dollars allows on average $10,000 per person. That is hardly enough to cover the emergency room fees let alone any surgery, rehabilitation, lost wages and other medical expenses. If there is a fatality, you may consider bankruptcy.

Your business has a small storefront on a busy street. A middle-aged executive comes into your place of business following a rainstorm. Your floor is wet and slippery, and the executive slips and falls. He strikes his head, loses consciousness, and goes into a coma. Your general business liability insurance has the same limit as your auto insurance – $100,000. It may cover part of the hospital bill, but the official says he is permanently disabled and sues you for future wages for $1 million. Since your business is a sole proprietorship, bankruptcy beckons.

Your son invites a friend over for a swim in your pool. He dives into the shallow end strikes his head and suffers traumatic brain injury. Sadly, the damage is permanent — with standard liability limits of $100,000 — well, you know, bankruptcy stares you in the face.

The inexpensive, elegant solution to the problem is umbrella insurance. When a claim exceeds your standard liability insurance limits, your umbrella insurance policy takes over and pays up to your umbrella liability limits. Most people who buy umbrella insurance extend their liability limits to $5 million.

Though you hope never to use it, for a few hundred dollars per year, you can protect your assets, and avoid financial disaster. Umbrella insurance pays when you are responsible for an injury that exceeds your standard liability limits.

Cold Weather Work Safety Tips

By Construction Insurance Bulletin | No Comments

With summer over, cold wet weather is not far away. Workplace safety is important for those workers who are outdoors working. Unfavorable weather conditions can cause health problems that are severe such as frostbite and hypothermia. In addition to cold and wet weather, wind is also a danger. With a blowing or gusty wind, cold wet weather is dangerous even if the temperature is above freezing.

Fortunately, by staying aware of your surroundings and using simple precautions you can avoid dangerous illnesses such as hypothermia and frostbite. A buddy system is a good idea for outdoor workers too. Know the signs of cold stress to look for it in yourself and your co-workers when your team works outside in cold climates.

Following are some cold weather safety tips for workers.


Frostbite is a medical term used when your skin and body tissue start to freeze because of exposure to cold weather. Your body’s most vulnerable parts are extremities including the nose and ears, fingers and toes.

Frostbite can come on quickly. Symptoms can include,

*A tingling sensation much like pins and needles.
*Pale or waxy skin that hardens
*Protective thermal clothing such as gloves, socks and a ski mask are helpful in deterring frostbite.
Nevertheless, prolonged exposure may cause frostbite even when extremities have some protection.

What to do if you or a coworker has frostbite

*Remove tight clothing and jewelry
*Place affected body parts in warm water bath. Do not use hot water as body tissue needs slow warming to avoid damage
*When normal feeling returns, pat dry the area and cover it to keep it warm
*Go for medical attention
*Notify a supervisor


Hypothermia is a dangerous illness that happens when your body temperature drops below 95 degrees.

Hypothermia symptoms

Victims of hypothermia have uncontrollable shaking. Other symptoms include:

*Bluish skin (especially fingers and lips)
*Irrational behavior
*Uncoordinated movements

Helping hypothermia victims

Hypothermia is a dangerous illness. Take the following steps when a worker displays hypothermia symptoms:

*Call 911 at once
*Move the victim to a warm dry place
*Take off wet clothing and put warm dry clothing on. Wrap the victim in a blanket.
*The victim should drink anything high in sugar such as a sports drink. Avoid caffeinated and alcoholic drinks.
*Make every attempt to keep the victim awake if possible
*Ask the person to move their extremities to make muscle heat

Working in cold, wet weather is physically tiring. In order to cope follow these tips.

*Take short breaks in a dry place often to warm up
*Use layered clothing that you can add or take off as conditions dictate
*Work boots need proper insulation and waterproofing
*Wear the right cold weather clothing
*Use a buddy system and try to work in groups – be aware of the fitness of your co-workers
*Keep clothing changes available so you can change out of clothing that will get wet

All employees need training on the symptoms and emergency treatment for frostbite and hypothermia.

Things You Don’t About Your Construction Company’s Workers Compensation

By Construction Insurance Bulletin | No Comments

Required by law, Workman’s Compensation Insurance, usually, called worker’s comp protects your employees from injury, illness, and even death that is work related.

Shop Around

Using statistics from The National Council on Compensation Insurance (NCCI) insurers determine high and low risk industries. Within the industry, individual employer safety records help when determining a specific insured’s premium. Like everything else, you buy, shopping around pays off as rates do vary from company to company.

Your construction company’s experience part of the premium calculation comes from the three-year rolling average of claims made during the prior four years. The four years comes about, as there is a lag period of one-year.

Employees on a Job Site May Have Other Recourse

Imagine you are a plumbing a subcontractor on a construction job. As the project is multi-stories the general contractor had scaffolding erected. One of your employees was on the second floor running some pipe, and the scaffolding gave way. Your employee fell two stories and severely injured his back. Because of his injury, he suffered three months of no work (lost wages) and required extensive physical and occupational therapy (medical costs). Extended physical labor is out of the question as it causes a great deal of pain (disability claim). It looks like you will take a hit on your workers comp experience rating, as this is a large claim.

But wait, you may want to join with your employee or your insurance company in a lawsuit against the scaffolding company as an investigation proved the scaffold was improperly put up. The scaffolding company had other similar lawsuits against it yet the general contractor hired them. Your employee and your workers comp insurance company can sue the general contractor for negligence in hiring a company with a bad safety record. If the insurance company receives an award because of the lawsuit, the hit on your experience rating is not as bad. The impact on your future premiums is less than if your insurance company paid all expenses related to your employee’s claim.


* Comparison shop for the best rates for your construction company’s worker’s comp insurance.
* Depending on the circumstances of the injury, others parties could be responsible under product liability or third-party liability claims. Work with your insurance company to keep their payout as small as possible to keep your premium low.
* Employers with good safety records pay less than employers who have poor safety records.