October 2014

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.

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.

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.

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.