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December 2015

Dec 04
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Qualified Workers? Are You at Risk?

By Construction Insurance Bulletin

con-dec-3Layoffs during the recession have resulted in a shortage of qualified workers in specialized areas of construction – and the problem will probably get worse as the industry picks up during the recovery. In this environment, some contractors might be tempted to stretch their hiring standards to fill out a project roster, increasing the danger of losses from on-site injuries and defect claims, among other risks.

The past two years have seen a sharp drop in the unemployment rate for former construction workers, but not a corresponding increase in construction industry growth. This means that these workers who have been unemployed are often finding other types of work, becoming full-time students, or have given up looking for a job in the building trades industry.

Because each construction company works in a unique environment and culture, a worker from one firm going to another might not have the required expertise. What’s more, construction is a profession that takes time to learn. Tight profit margins and financial problems can pressure smaller and midsize contractors into cutting corners by hiring inexperienced workers. This increases the risk of on-site accidents and injuries –and leads to poorer quality work that can easily result in costly and annoying defective construction claims (see the article “Construction Managers E&O Insurance: Nobody’s Perfect! ”

In addition as the building industry comes out of the recession, OSHA has become far more aggressive and vigilant in monitoring worker safety.

The bottom line: Avoid the temptation of hiring inexperienced workers as a way to save money, and you’ll keep your risk of on-site accidents and injuries – not to mention your insurance premiums – under control. What’s not to like?

Dec 04
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Scaffolding – Important Safety Tips

By Construction Insurance Bulletin

con-dec-1Most construction projects include the use of scaffolding, which can leave your workers vulnerable to injury. To help you prevent falls on site, industry expert recommend that managers follow these proactive guidelines:

  • Slow down or consider efficiency building alternatives. Although the pace of construction work is important, it can easily lead to careless and costly mistakes, including gaps in safety on the jobsite. “You don’t have to sacrifice speed for safety, as long as you’re working at the highest level of efficiency, and being safe plays its own role in this process,” says Mike Mumau, president of Kee Safety – North America.
  • Keep your workplace organized. Careful placement of tools can reduce the risk that they’ll injure workers by falling from scaffolding – and make it safer to move around on the scaffolding.
  • Identify potential hazards and find solutions in advance. For example, if you’re working near power lines, keep scaffolding far enough away to prevent electrocution risks. If scaffolding needs to be moved during the project, have a plan before each move.
  • Provide training. Make sure your workers are trained and up to date on OSHA requirements. “Training in the setup and construction of scaffolding can ensure a solid work space for overhead workers and guarantee a rig that will not inadvertently collapse from instability,” warns Mumau.
  • Keep reviewing the site throughout the project. Be sure to identify any new hazards that might arise during construction. During the course of the job, workers tend to become increasingly more comfortable with “routine” activities – which might easily lead some of them to neglect safety precautions inadvertently (or blatantly).

Our construction safety specialists stand ready at any time to offer a complimentary review of your job site safety programs. Remember, the safer your workers, the healthier your bottom line – and the less you’ll pay for insurance.

Dec 04
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A Short Note a Private Matter that Became a Protected Activity

By Your Employee Matters


Rose Lee Cardenas v. Fanaian, DDS, Inc.

DentistIn August 2009, Rosa Lee Cardenas began working as a dental hygienist for a local dentist in Reedley, CA. According to the Facts of the Case:

“In celebration of their 25th wedding anniversary in 2010, Cardenas‘s husband bought her a new, expensive wedding ring. Cardenas always wore the ring to work, but placed it in the blouse pocket of her scrubs at the start of each workday. On Monday, October 11, 2010, Cardenas wore her wedding ring to work as she always did, but when she left work that day, the ring was missing. She testified that she took the ring off that morning and placed it on the breakroom table with her cell phone and other belongings. Meanwhile, she put her lunch in the office refrigerator and engaged in small talk with a coworker. A few minutes later, when Cardenas collected her belongings from the table, she noticed her wedding ring was not there, but she assumed she must already have put it in the blouse pocket of her scrubs. When she left the office at the end of that day, she realized she did not have her ring. She called coworkers to ask if they had seen the ring, and she returned to the office on more than one occasion to search for it, but did not find it. She also searched the parking lot, her car and home, to no avail.

“Cardenas had reason to suspect her ring had been stolen at work by a coworker. She testified that when she informed Dr. Fanaian of her decision to file a police report, he did not support her decision and even asked her not to tell the police that she had left the ring on the breakroom table at work. According to Cardenas, Dr. Fanaian ultimately told her, ―[D]o what you feel like you need to do,‖ but he seemed upset or angry.

“Cardenas and her husband, an officer with the Fresno Police Department, reported the theft of the ring to the Reedley Police Department. Cardenas‘s husband initiated the police report on or about October 21, 2010. On October 24, 2010, Cardenas gave a formal statement to the Reedley Police Department regarding what happened, including her reasons for suspecting that the ring was stolen by a coworker in the workplace. In investigating the matter, police officers came to the dental office and questioned office personnel. Dr. Fanaian was upset that the police had come to the office and he told Cardenas that her husband was ―making the situation worse.

“On November 10, 2010, Dr. Fanaian met with Cardenas and told her that the police had recently been to the office a second time. He told Cardenas that the situation was causing great tension and discomfort among the staff, and that he was going to have to let her go. He gave her her last paycheck and allowed her to collect her family photographs and other belongings from her desk.”

She thereafter filed a lawsuit claiming that that termination was in violation of Labor Code Section 1102.5 which forbids employees from retaliating against employees who report violations of law that affect public policy. She also sued for Wrongful Discharge in Violation of Public Policy (based on the Tameny case in California. The jury found in favor of Ms. Cardenas on both causes of actions and awarded her $117,768 in damages.

After the judgment the case went on appeal based on the argument that her reporting a stolen piece of property at work was not a report within the “public interest” affording her the protections under those causes of action. The Court ruled that a Section 1102.5 claim does not require proof of a violation of a fundamental public policy and need not involve violations of law arising out of the employer’s business activities. A very broad interpretation of that statue.

Not surprisingly Ms. Cardenas reported that her ring was found shortly after her termination.

Picture this: an employee, potentially accuses another one of the dishonesty, causes a ruckus, brings in the police, disrupts the entire workforce, and as an owner you can’t do anything about it.

Remember this: the basis of the law is “at will” employment. That is the overriding public policy. The only time that rule sets aside is when on balance public interest is served by protecting an employee from termination. I was involved in the writing of Section 1102.5. I don’t think any of the authors foresaw this potential type of claim coming within the scope of the legislation. If somebody is claiming a health or safety issue related to their health or that of the public and gets terminated for it then you have a classic public policy violation case. However in this situation the “public” being protected is far too nebulous to support this cause of action and simply expands employer liability.

 

Dec 04
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Office Closure and Telework (Courtesy ThinKHR)

By Your Employee Matters
Work-From-HomeQuestion: Are we required to allow employees (either exempt or nonexempt) to work from home if we must close the office due to bad weather?

Answer: No, employers are not required to allow employees to telework (work from home or another location; virtual work) under any specific weather conditions regardless of Fair Labor Standards Act (FLSA) exemption status. However, employers may allow employees to telework. Company policy should delineate procedures for both teleworking and notice requirements when inclement weather affects the workplace; for instance, notice from the employer that the workplace is closed and notice from employees that they cannot travel to the workplace due to weather-related or other emergency conditions. These policies should be in the employee handbook, and should also detail whether the employer will allow nonexempt employees to make up missed time.
Note that if the employer closes the workplace for weather-related reasons, nonexempt employees are not entitled to pay because such employees are only entitled to compensation for hours actually worked. However, an employer may allow nonexempt employees to use accrued paid time off so as to receive compensation during such an absence. If paid time off is not available, then the time off remains unpaid.

Alternatively, exempt employees who are able and available to work but do not work because the employer closed the workplace due to inclement weather are still entitled to their full week of pay. This is because the exempt employee is available to work but rather the employer made the work unavailable. As a general rule, if an exempt employee performs any work during the workweek, the employee must be paid his or her full salary amount. An employer may not make deductions from an exempt employee’s pay for absences caused by the employer or by the operating requirements of the business. If the exempt employee is ready, willing and able to work, an employer cannot make deductions from the exempt employee’s pay when no work is available. Additionally, the U.S. Department of Labor specifically states that an example of an improper deduction from an exempt employee’s pay includes deduction of a days’ pay because the employer was closed due to inclement weather.

 

Dec 04
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Healthcare Workers and Safety (Courtesy ThinkHR)

By Your Employee Matters
doctor-840127_640Question: Does OSHA provide guidance to protect healthcare workers from workplace violence? What about in a hospice?

Answer: The Occupational Safety and Health Administration (OSHA) has developed a web page dedicated to providing information and guidance for healthcare workers and their employees regarding workplace violence specific to the health care industry. OSHA understands that workplace violence (WPV) is a recognized hazard in the healthcare industry and defines WPV as any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It can affect and involve workers, clients, customers, and visitors. WPV ranges from threats and verbal abuse to physical assaults and even homicide.

The National Institute for Occupational Safety and Health (NIOSH) recommends that all hospitals and healthcare employers develop a comprehensive violence program; non-hospital settings where violence has been determined to exist are advised to do the same. Employers are advised to form multidisciplinary committees that include direct-care staff as well as union representatives (if available) to identify risk factors in specific work scenarios and to develop strategies for reducing them. All affected workers should be alert and cautious when interacting with patients and visitors. They should actively participate in safety training programs and be familiar with their employers’ policies, procedures, and materials on violence prevention.

OSHA suggests the following references for employer use:

For help with creating policies specific to hospices, see:

 

Dec 04
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Editors Column: Time for Me to Go

By Your Employee Matters
DonPhinI’ve been writing the Your Personnel Matters column since 1997. I’ve come to know many of our readers personally and I hope I’ve been able to share sound advice, strategies and tools over that time.

Now that I have sold HRThatWorks and end my employment with ThinkHR, it’s time to do new things. I will be building Vistage HR Groups here in San Diego, doing workplace investigations, supporting ThinkHR consulting needs, continue speaking and I have a few more books up my sleeve. And more. No rest for the highly pumped up!

I finish with a few words of wisdom gathered from over 33 years as an employment attorney and risk consultant:

1. Following the law is not a maybe, it’s a must. I have no sympathy for employers who try to skirt around their legal obligations.

2. Get EPLI coverage. Limit your risk exposures wherever possible. Get a high deductible if cost is a major concern. Buy a stand-alone policy.

3. Don’t hire victims. Make sure managers take a checklist approach to hiring. Ask my favorite interview question: “What felt unfair to you at your last job?” Dig into their answers.

4. Don’t ignore, bury or deny problems. Investigate them promptly and thoroughly. Best time to deal with a problem is right now!

5. Don’t make things worse than they already are. Seek compromise and resolution…even if you feel you are “right”. If faced with a foe without reason then fight like hell and drag them before the court.

6. Don’t give over control of litigation to the lawyers. Stay actively involved and make sure there is a well thought our game plan.

7. Bring some joy, passion and fun to the workplace. Funny how those types of companies never seem to get sued!

And…remember this: people who trust each other don’t sue each other!

 

Dec 04
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401 (K) Participants – Work with a Professional.

By Employment Resources

eb-dec-4Although most workers accept responsibility for financing their retirement and rely primarily on their 401(k) plans to get them there, many workers aren’t sure that they can manage the 401 k plans effectively, according to a Schwab Retirement Plan Services nationwide survey with more than 1,000 participants. Nearly nine in ten participants (89%) believe they’ll be responsible for funding their “golden years” through a 401(k). The anticipated use of these plans fuels this self-reliance:

  • 61% report that the 401(k) is their only or largest source of savings
  • 55% have increased their savings rate in the past two years
  • 70% say their plan is in better shape than ever

However, that savings in a 401(k) is not enough to instill confidence for many participants:

  • 52% find their investment explanations are even more confusing than those of their health benefits
  • 57% would like an easier way to determine the best investments
  • 34% feel stress over allocating their plan dollars correctly

Of the workers surveyed, 61% want personalized investment advice on everything from asset allocation to risk tolerance and retirement income planning. Investment confidence nearly doubled when workers have the help of a financial professional. More than two in three respondents (61%) expressed confidence in making the right choices with professional advice, compared with one in three (32%) who relied on only their own abilities.

“Getting more workers engaged in professional 401(k) advice should be a top priority for employers,” says Steve Anderson, head of Schwab Retirement Plan Services. “At Schwab Retirement Plan Services, Inc., participants who used third-party, professional 401(k) advice tended to increase their savings rate, were better diversified, and stayed the course in their investing decisions.”

Sounds like sound advice.

Dec 04
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Employers Face Hurdles with Wellness Programs

By Employment Resources

eb-dec-3A recent expansion of nondiscrimination rules for workplace wellness programs could curb the ability of businesses to use incentives for improving employee health care outcomes.

May 2013, the Department of Health and Human Services (HHS) set final regulations under the Patient Protection and Affordable Care act that broaden protections for employees who are medically or otherwise incapable of completing activity-based or outcome-based objectives to earn rewards or avoid penalties under worker wellness programs.

Under the new rules, beginning in 2014, employers must provide a “reasonable alternative standard” through which workers can still earn an activity-based wellness incentive if a medical condition prevents them from completing the activity. Employers will also be required to provide reasonable alternative standards for employees who can’t meet a health outcome plan target— such as a percentage reduction or benchmark in their body mass index, cholesterol, or weight.

There’s no way to tell how many employees will use these broader alternative standards, and/or if the reasonable alternative programs can work as well as the initial programs in terms of health outcomes. The additional discrimination protections tied to outcome-based incentives could make it harder for employers to use rewards as a way to drive engagement in health management, or gauge how well the programs are working if significant percentages of employees use alternative methods to obtain these rewards.

Says one employment law expert, “It’s very difficult to design a reward for the outcome that you want your employees to achieve if anyone who doesn’t meet that standard, regardless of whether they’re capable of doing so, is given an alternative means of getting that reward.”

To learn more about implementing the new HHS regulations in your workplace, just give us a call.

Dec 04
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Increase Employee’s Financial Health

By Employment Resources

eb-dec-2The financial well-being of your employees affects their health, their productivity and your bottom line!

A recent nationwide survey by Purchasing Power, Inc. found that:

  • A high percentage of employees suffer significant financial stress. More than one in four workers surveyed (28%) find it hard to meet monthly household expenses and nearly half (44%) have less than $2,000 in emergency savings.
  • They bring these concerns to the job. More than four in ten (44%) worry about personal finances during work hours.
  • This stress leaves them less engaged at work and reduces productivity. Nearly three in ten employees (29%) deal with personal finances during work hours and almost half of these (46%) average two to three hours a week on money issues.

Purchasing Power Chief Revenue Officer Elizabeth Halkos offers some recommendations to help your workers maintain their engagement and productivity at the office:

  1. Help them reduce debt by offering education, either in groups (through webinars or with a live speaker) or individually so that workers can learn about topics such as budgeting, intelligent use of credit and savings programs. A referral to a qualified credit counseling agency can provide a useful follow-up.
  2. Give them access to responsible budgeting tools. Offering non-traditional voluntary benefits, such as employee purchase programs ( which allow workers to acquire high-ticket items and educational services on a “forced saving” basis through payroll deduction) can help reduce their financial stress significantly.
  3. Encourage employees to participate in retirement programs such as a 401(k) plan. However, before workers do this, advise them to deal with debt and budgeting issues and tuck away a nest egg.

Our Benefits experts stand ready to help you ensure financial peace of mind for your workers. Just give us a call.

Dec 04
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Do Your Kids Need a Life Insurance Policy, Too?

By Employment Resources

eb-dec-1Life insurance makes sense for you because it gives your surviving family members financial peace of mind if you were to die. However, do your kids need life insurance, too? November is National Adoption Month and a good time to consider this insurance option for your children.

Receive Lifetime Coverage

Pay the monthly premiums, and your children gain insurance for life. In many cases, they won’t even need a health exam when they’re older unless they want a death benefit increase.

Enjoy Low Rates

Most life insurance policies use age to determine premiums. You’ll pay less to insure your young children, and permanent policies lock in the premiums for the life of the policy.

Eliminate Health Exams

Most life insurance policies don’t require kids to undergo a complete medical exam. Since kids are usually healthier than adults, they typically won’t be denied coverage. This benefit is especially important if a serious medical condition like diabetes or heart disease runs in your child’s family.

Gain Cash Value

The premiums you pay for permanent life insurance cover the policy and build cash value. That cash could grow at a variable or fixed interest rate. By the time your kids turn 18, they could have a healthy accumulation of cash to pay for college, buy a house or save until they retire.

Cover Final Expenses

Parents don’t expect their children to die young, but accidents happen. Life insurance covers final expenses and protects your family’s finances.

Evaluate Your Budget

Despite the benefits; your budget may not stretch enough to include life insurance for your kids. After you ensure you’re adequately insured, weigh the benefits of life insurance for your children and discuss your needs with your insurance agent. He or she can work with you to find a policy that’s right for you.

Consider Alternative Saving Tools

Roth IRAs and 529 Plans assist parents in saving money for their children’s futures. Investigate these saving options as you choose the best way to provide for your children.

Whether or not you plan to adopt a child during National Adoption Month, November’s a good time to consider life insurance. Your agent can discuss your options with you as you adequately care for your children.

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