Marketplace Notice

The ACA mandates that employers subject to the Fair Labor Standards Act (FLSA) provide a notice to employees with information regarding their coverage options, including those available in the Marketplace, by October 1, 2013.  The ACA added section 18B to the Fair Labor Standards Act (FLSA) requiring all employers subject to the FLSA to send the Marketplace Notice. 

Employers must send or provide the Notice to all employees, regardless of whether or not they are eligible for or enrolled in coverage under an employer-sponsored health plan.  Therefore, employers must send or provide the Marketplace Notice to part-time, seasonal, or temporary employees in addition to sending or providing the Notice to full-time employees.  While the initial notification is required to be provided to all current employees by October 1, 2013, employers must also send or provide the notice to new employees hired after October 1, 2013 within 14 days of such employee's date of hire.

Pursuant to the Affordable Care Act (ACA), individuals and employees will be able to access health insurance coverage through a private health insurance market - the Health Insurance Marketplace - beginning on January 1, 2014.

DOMA Decision

Lower courts have begun to issue rulings based on the Supreme Court's June 26, 2013, Defense of Marriage Act (DOMA) decision, with two district courts recently extending the ruling's application.  In addition, the Department of Labor revised a fact sheet on qualifying reasons for leave under the Family and Medical Leave Act (FMLA), in response to the Supreme Court's historic decision this summer striking down Section 3 of DOMA.

Mother-Friendly Employers

While driving home I heard a radio commercial advertising Mother-Friendly Employers here in Texas.  We've come a long way.  Who would have thought that companies would advertise their support of breastfeeding in the workplace?  Or that a work-site might obtain "Mother-Friendly" designation?

The Texas House of Representatives passed HB 741 in early May.  HB 741 requires public employers, school districts, cities, counties and state agencies, to accommodate employees who need to express breast milk at the work place.  Under current law, working mothers who are hourly employees have federal protections in place for when they need to express milk in the workplace.  (The Federal Health Care Reform Bill, signed in March 2010, contained an amendment to the FLSA requiring employers to give breaks for nursing.)  However, salaried employees have no protections in state or federal law.  House Bill 741 seeks to close this loophole.

Is Your Office Hazardous To Your Health?

The personal injury law firm of Brent & Adams Associates released a list of the most common worker's comp-worth maladies:

• Repetitive stress injuries, such as carpal tunnel syndrome
• Lifting injuries
• Slip and fall injuries
• Injuries resulting from tripping on stairs or loose carpeting.
• Deep-vein thrombosis, caused by prolonged sitting.
• Strains from bending or falling out of unstable desk chairs.

Who knew that working in an office environment could be so hazardous? 

When people think of occupational safety and health needs, they picture dangers around constructions sites or factories.  However, office workers face many unique challenges to their safety and health.  As an employer you should provide your employees with training and education to improve their workplace safety and health.  Need a resource?  Look to OSHA for guidance.

Employee Absenteeism

When I mention measuring employee absenteeism the first thing that comes to your mind is firing employees because they missed too many days at work.  Right?  Well, maybe it shouldn't.  You can measure absenteeism for many purposes including workforce planning, lost wages and reduced productivity.  But can you also use it to measure employee morale?

Employee absenteeism is a major concern for employers.  Yes, there is oftentimes a sense of entitlement in the workplace that it's okay to be absent.   And where there is an excessive pattern, or a trend in the days the employee is absent, then it is time to take action. But, we also need to acknowledge that people get sick.  In those situations where you perceive a pattern of excessive absenteeism is developing, I highly recommend a discussion with the employee in order to determine if there is a potential FMLA, ADA issue to be addressed.

Absenteeism can be due to a variety of reasons.  If an employee is stressed about their workload, this may manifest itself through absenteeism.  Stress with the job routine and/or job satisfaction, the environment (cold, hot, noise) even with management (style, personality traits).  If stress is a factor, you need to discuss strategies to resolve the stressor.  If one employee is experiencing stress, perhaps others are as well.  We all have more to do and less time to do it in today's business environment.

In those instances where there appears to be an unacceptable level of absenteeism:

1. Meet with the employee.
2. Express your concern.
3. Provide the employee with an opportunity to explain themselves.

Some random statistics for you:

According to a 2012 global workforce survey, "highly engaged employees have lower 'presenteeism' (lost productivity at work) and less absenteeism than disengaged employees. The former lose an average of 7.6 days per year to presenteeism, compared with an average 14.1 days for the disengaged employees....

According to a 2010 Metlife report, "employees with eldercare responsibilities were more likely to report missed days of work. This was driven by the much higher absenteeism among younger caregiving employees, ages 18 to 39. Overall, 9% of non-caregivers missed at least one day of work over the past...

According to a 2009 survey by the National Alliance for Caregiving, "over seven in ten caregivers were employed at some time when they were caregiving (73%). Among them, two-thirds (66%) have gone in late, left early, or taken time off during the day to deal with caregiving issues (66%). One in five...

The Importance of Training Managers

What is the cost to an employer when a manager doesn't recognize s/he is acting in a discriminatory manner?   Some managers don't seem to understand what discrimination means, or oftentimes how to recognize it.  Discrimination, and the cost of discrimination, is a problem that companies just can't ignore.

In an EEOC Press release of 1/23/2013 the Dallas-based Fries Restaurant Management will pay a former employee $25,000 to settle a religious discrimination lawsuit.  The employee, Ashanti McShan, is a member of the Christian Pentecostal Church which requires women to wear either skirts or dresses.  During the interview process with Burger King, Ashanti requested a religious accommodation to wear a black skirt versus the black uniform pants.  She was told by the interviewing manager that her accommodation would be granted.  However, during her orientation the store manager advised her she could not wear a skirt and had to leave the store.  McShan attempted to contact higher management, and was unable to speak with anyone.  She was later discharged as a result of the accommodation denial.   Title VII of the Civil Rights Act of 1964 prohibits religious discrimination.  It requires employers to make reasonable accommodation as long as such does not pose an undue hardship on the organization.   

Florida Courts:  In Hurley v. Kent of Naples, on or about 2005, Patrick Hurley was diagnosed with depression and related mental health symptoms.  The doctor who provided the diagnosis, and the therapist, both advised that he should take medical leave.   The employee advised the company senior officer that he had been diagnosed with depression and needed time off to deal with it.  Having accumulated several weeks of vacation, the employee requested to take most of the year off on vacation.   His request was denied and he was terminated.  Obviously an FMLA suit, alleging interference with FMLA rights and retaliation, followed and Hurley won.  (FMLA entitles eligible employees to take unpaid, job-protected leave for certain family and medical reasons.)    The estimated judgement:

• $200,000 for actual monetary losses
• $353,901.85 for front pay
• $200,000 liquidated damages
• $233,109.75 for attorneys' fees
• $21,329.36 for "costs."

Texas courts: In an EEOC press release of December 18, 2012, Dillard's will pay $2 million to settle a class action disability discrimination lawsuit. Dillard's Inc, enforced a maximum-leave policy limiting the amount of health-related leave an employee could take. Additionally, since 2005, Dillard's had a national policy and practice that required employees to disclose the exact nature of their medical conditions to be approved for sick leave. Further, Dillard's terminated a class of employees nationwide for taking sick leave beyond the maximum amount of time allowed. This policy violated the ADA which prohibits employers from making inquiries into the disabilities of employee's unless it is job-related and necessary for the conduct of business.  The second violation was that managers/supervisors (or even HR) did not regularly engage in an interactive process with employees to determine if more leave was allowed under the ADA as an accommodation.  (More information is available on the EEOC website.)  While you can't blame the managers for this company-wide form of discrimination, logically HR should have identified the violation and pushed for policy reform.  But, who's to say that they didn't?

When discharging an employee who just revealed the need to take time off for a medical condition, use caution. Make sure the discharge reason is unrelated to the request.  Remember, firing an employee who is pregnant has legal risk.  Firing an employee because she is pregnant is illegal.

Employers can take steps to prevent discrimination claims by ensuring that all managers are properly trained.  Please invest in training your managers. 

"The best way to begin is to begin." 
                        - Benjamin Franklin.

Concerted Activity

When you think of the term "concerted activity" there is often an automatic assumption that a union, or union activity, is involved.  But that's not always the case.  Section 7 of the NLRA states "Employees shall have the right to self-organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. . . " 

 

Protected concerted activity sometimes has nothing to do with unions at all.   Employees who get together and complain to management about their pay or benefits is engaged in concerted activity.   Concerted activity can include internal complaints of discrimination, discriminatory harassment complaints, etc., all of which is protected by Section 7 of the NLRA.  

Marijuana Legalization and Texas Employers

With both Colorado and Washington passing state laws allowing for the legalization of recreational Marijuana use, Texas employers question the impact to their drug testing and substance abuse policies.   Without going into multiple scenarios or explanations, let's go with a short answer.  These laws have little, if any, effect on your policies/programs. 

 

Remember:

1. Marijuana possession is still unlawful under Texas and federal law. 
2. Texas has no law prohibiting employers from taking adverse action against employees engaged in lawful off-duty conduct.  As such, a Texas employer can take disciplinary action against an employee testing positive for Marijuana usage. 
3. Federal law still criminalizes the possession of Marijuana even in states that have legalized it.

2013 Top EEOC Enforcement Topics

2013 is here and so are new challenges for employers!  Via HR Alert, below is a list of the top 5 EEOC enforcement topics for 2013. 

 

1. Strict leave policies and ADA.  To avoid EEOC attention, ensure that you are providing proper reasonable accommodations to disabled individuals.  Also under the EEOC microscope will be leave policies like no-fault attendance, fixed-leave and 100% healed (policies requiring an employee to be fully healthy before returning to work.)
2. LGBT Issues:  EEOC will be looking for signs of discrimination against lesbian, gay, bisexual and transgender individuals.  In April 2012 the EEOC issued a precedent-setting case, Macy v. Holder, that interpreted existing laws prohibiting discrimination on the basis of sex to also prohibit discrimination on the basis of gender identity and sex stereotyping (believing a man must be masculine and a woman feminine, for example).   EEOC determined that transgender employees are covered under Title VII.
3. Leave Policies for Pregnant Workers.   Review your leave policies to ensure they don't open the door to discrimination against pregnant workers.
4. Litigation of national and regional class-action cases.  Employers can expect to see a continued emphasis on company wide investigations. 
5. Use of background checks in hiring process.  In April the EEOC released its guidance on the use of arrest and conviction records in employment decisions.  If you need a refresher, refer back to my June 6, 2012 blog for the enforcement guidelines.   As an employer you need to ensure you understand the differences between arrest and conviction records and how, in some instances, the use of an individuals criminal history in making an employment decision may violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.

Happy Thursday everyone!

Is Workplace Stress a Modern Epidemic?

Remember when 5PM meant the end of a workday?    As a result of  factors such as the economy, job insecurity, or even employer demands, employees remain tethered to work 24/7 through their iphones or Blackberrys.   Face it, we're plugged in and the technology makes us accountable for every moment of our day (just a thought, but working 24/7 shouldn't be a badge of honor).   Let's stop pretending that employees, or you, don't have lives outside of the office and consider how these nonstandard work schedules impact the modern employee and family.
 

Stress is a built-in condition and we're hardwired for it.  In the workplace, those stressors can come from multiple areas or just one.  Workload, lack of appreciation, isolation, conflict, mistrust, lack of direction or just pervasive uncertainty.   When those stressors in your life are always present, it impacts both physical and emotional health. 

Research statistics provided by Statistic Brain in April 2012 (source: American Psychological Association, American Institute of Stress) gave employers an insight into the Top Causes of Stress in the U.S.  The #1 cause of job stress in the U.S. is Job Pressure with contributing factors such as co-worker tension, bosses, and work overload.  

• 77% of the respondents indicated that they regularly experience physical symptoms caused by stress.
• 73% regularly experience psychological symptoms caused by stress.
• 48% feel their stress level has increased over the past five years.

 Additional statistics relating to the impact of stress:

• 48% of respondents say stress has a negative impact on their personal and professional life.
• 31% have difficulty managing work and family responsibilities.
• 30% say they are "always" or "often" under stress at work.

Let's talk about stress's nasty side affects.  Physical symptoms reported by respondents as a result of stress:

• 51% experienced fatigue
• 44% headache
• 34% upset stomach
• 30% muscle tension.

with reported Psychological Symptoms:

• 50% irritability or anger,
• 45% feeling nervous
• 45% lack of energy
• 35% feeling as though they could cry.

Annual costs to employers in stress related health care and missed work?  $300 Billion.

If you want to disregard all of the statistics above, the CDC released their own set of statistics regarding Prescription Anti-Anxiety Drug Use in the U.S. for the period 1988 - 2008.  Think the workforce isn't stressed?  The results by CDC reflected a steady increase in the use of prescription anti-anxiety drugs.  Use by adult women increased from 4% to 5.70% between 2002 - 2008.   Adult population use in 1994 was 2.8%, by 2008 there was an increase to 4.50%.

Let's all take a vacation!  Who's with me?

http://www.statisticbrain.com/stress-statistics/

Employee Satisfaction

Earlier this year an on-line survey by Accenture reflected that 57% (women) and 59% (men) were dissatisfied with their jobs.  While dissatisfied with their jobs, more than two-thirds (69%) said they would stay with their current employer.    I guess that’s a good news / bad news scenario.    The workforce is stable, but it's dissatisfied. 

I’m a firm believer that employees are the key to either the success or failure of an organization.  What happens when those employees decide it's just too much anymore and they seek other opportunities?   Are you willing to loose this intellectual resource?  What will the impact to the organization be?

As an employer, proactive steps should be taken to determine where employee dissatisfaction stems from.  

1. Survey your employees to find out their needs.  Are there little hassles they they are experiencing day to day?   What would make them more satisfied in their work?  Smart employers will listen to new ideas, be open to change.  Provide employees with the opportunities to present ideas for new processes, new efficiencies, to management.
2. Provide training and advancement opportunities.  Is there a career path for employees?  Do they have an opportunity to grow and/or expand their skills?  Achievement can be more important to one employee than another. 
3. Address any compensation concerns.  Is there a perception of “fair pay?” 

 

Workplace Bullying Increasing

New survey results.  And no, the results aren’t good.  CareerBuilder released the results of a survey addressing workplace bullying.  The survey, conducted by Harris Interactive (May 14 – June 4, 2012), collected the responses of more than 3,800 workers nationwide.  The survey found that 35% of the respondents admitted they felt bullied on the job.  Unfortunately, that’s an 8% increase from last year.    

Bullies are found at all levels of the organization. The largest offender?  The boss at 48% followed by co-workers at 45%.  In a 2005 survey, when participants were asked to identify factors "which impair their organization's ability to deal effectively with bullying, the most commonly cited factors were management's unwillingness to acknowledge that a problem exists, and the prevailing management style."   Where are we 7 years later?  We acknowledge that a problem exists, but we're not making much headway in solving the problem. 

Bullying takes many forms:

• applying different standards to different people;
• constant criticism;
• ignoring an employee;
• false accusations of mistakes.

No matter what shape or form bullying takes, it can cause more harm that just hurt feelings.   Seventeen percent of the respondents to the survey indicated that they quit their jobs to escape the situation.  Sixteen percent said they suffered health-related problems as a result of being the target.

CareerBuilder released the results of their survey for Canadian employees on August 29^th.  How did our neighbors to the North do?  Of the 552 full-time employed Canadians, 45% of respondents said they were bullied.  The source:  24% coworkers, 23% immediate boss, 17% higher manager.  Twenty six percent of the bullied workers stopped their bullying by quitting their jobs.  A larger survey by the Workplace Bullying Institute indicated that 28% of the targets voluntarily quit, but another 25% quit after being forced out (constructive discharge).

The Workplace Bullying Institute defines bullying as "repeated, health-harming, mistreatment of one or more persons (the targets) by one or more perpetrators. .. . ".   Workplace bullying may violate an organizations ethics standards, company policies or even the law.   Review your policies.  Has anyone in your workplace been subjected to bullying?  What steps have you taken to eradicate bullying from your workplace?

 

 

The Obesity Epidemic

The Economic Impacts of Obesity in the Workplace.  Quite a title isn't it?   A 2010 article, it's currently making the rounds via HR Benefits Alert and other HR advisories.  The article cites medical costs, productivity costs, transportation  costs and human capital costs as areas of potential economic impact.

In that same year, 2010, the CDC released it's findings that in 2009 - 2010, 35.7% of U.S. adults were obese. That's 78 million U.S. adults (41 million women and more than 37 million men over the age of 20).  Prior to those findings, in 2009 the CDC launched a website called "LEANworks" as part of a campaign to work with employers to reduce workplace obesity. (LEAN = Leading Employees to Activity and Nutrition.) The website provides an obesity cost calculator for the employer. Using data provided by either the benefits personnel or human resources, the calculator allows an employer to estimate obesity related costs.  Shocked?  In Japan, companies use BMI (body mass index) as an evaluation tool for employment and dismissal.

The CDC released a report in which they indicated that an estimated 42% of Americans will be obese by the year 2030.  According to the American Health Association, if current trends in the growth of obesity continue, total health care costs attributable to obesity could reach $861 to $957 billion by 2030.  That would account for 16% to 18% of U.S. health expenditures.

Statistics or studies, fact or fiction, there's a tremendous amount of information out there that deals with obesity.  Yes, obesity is a concern.  But what about the human cost? Obesity exacts a tremendous price on overweight individuals. Chronic health problems. Psychological suffering.

There has long been the belief that poverty and obesity go hand in hand.  There's no doubt that we need to make healthier choices.  But sometimes that's easier said than done (as my mother would say).   A family on a reduced/limited income has tough choices to make.  They can feed a family of 4 at McDonald's for a lot less than it takes to buy the ingredients to fix a nutritious meal for those same 4 family members.

Is the rising tide of obesity linked to rising food prices?  Basically, one of the primary reasons that lower-income people are more over-weight is because the unhealthiest and most fattening foods are the cheapest.  Between 1985 and 2000, the inflation-adjusted prices of fruits and vegetables increased by an average of 40%.  The price of soft drinks fell by almost 25% during the same time period.  (The American Journal of Clinical Nutrition recently reported that $1 can buy either 1200 calories of potato chips, 250 calories of vegetables or 170 calories of fresh fruit.) 

Obesity is a concern.  And yes, there may be an economic impact to your workplace.   From the Human Resources angle, what about weight discrimination or bias?

Weight discrimination is largely ignored, but it is a serious issue.  The Citizens Medical Center in Victoria, Texas recently instituted a new policy.  This new policy requires that an employee's physique "should fit with a representational image or specific mental projection of the job of a health care professional."   I'm sorry - what?The medical center will require new employees to have a  body mass index of less than 35. 

This policy may cause outrage, but whether or not it's legal remains to be determined. The hospital is going to have to establish job related reasons for excluding employee candidates with a body mass index above 35.  And, how is the hospital going to actually determine the candidates body mass index? 

Weight discrimination is one of the last types of bias that is, for the most part, legal.  Michigan is the only state with laws on the books prohibiting weight discrimination. 

For those that are interested, a Gallup-Healthways Well-Being Index Report indicated that the national obesity rate dropped to 26.1 percent in 2011 from 26.6 the prior year.  A slight drop, but a drop nonetheless.  In this same report, Gallup identified the most and least 5 obese states in the U.S.  For the second year in a row, Colorado had the lowest obesity rate at 18.5% (the only state below 20%).  West Virginia had the highest obesity rate since 2008, at 35.3 percent.  Texas didn't show up on the report.  So, I guess we're doing alright!

Going Postal - Violence In The Workplace

The 1986 killings by a part-time letter carrier, and his subsequent suicide, was not the first episode of its kind.  From 1983 forward, the United States has become chillingly aware that a trend had been developing with postal workers committing acts of violence against co-workers.   These events raised awareness of workplace violence. The term “going postal” became American English Slang for an individual becoming uncontrollably angry, and often committing violent acts in a workplace environment. 

I’m not going to address whether or not U.S. Postal Service workers are more likely to “go postal” than other employees.  I just want to address workplace violence. 

In 2003, The Federal Bureau of Investigation, National Center for the Analysis of Violent Crime issued a paper titled Workplace Violence, Issues in Response, which stated; “Mass murder on the job by disgruntled employees are media-intensive events.  However, these mass murders, while serious, are relatively infrequent events.  It is the threats, harassment, bullying, domestic violence, stalking, emotional abuse, intimidation, and other forms of behavior and physical violence that, if left unchecked, may result in more serious violent behavior.  These are the behaviors that supervisors and managers have to deal with every day.”

The OSH Act of 1970 General Duty Clause requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”.  Citations can occur if an employer doesn’t take reasonable steps to prevent or abate a recognized violence hazard in the workplace.  While there are industries considered particularly vulnerable to workplace violence, all companies should take steps to implement effective safety measures to reduce the threat of workplace violence.  In 2011 the U.S. Department of Labor’s Occupational Safety and Health Administration released a new directive on workplace violence. 

According to the Bureau of Labor Statistics, nearly 600 people a year are victims of workplace homicide.  As recent as 2009, homicide was the number one cause of death for a woman on the job.   In 2010, workplace violence accounted for 18% of all work related fatal occupational injuries (assaults and suicides). 

Warning signs that an employee may be contemplating violence include a confrontational attitude, threatening co-workers, clients, customers, or boss, bragging about guns, and/or aggressive behavior.  Take steps to protect your employees: 

• Be aware of the warning signs. 
• Understand your policy. 
• Report to HR and upper management so that the organization can take action to protect its employees.

Workplace violence can affect employees, visitors, customers, and clients, even at times, employee families. Prevention programs that do not consider harassment in all forms and threats are likely to be ineffective. As an employer, we have a legal and ethical obligation to provide employees with an environment free from threats, harassment or violence.

2012 Executive Employer Survey Report

Littler Mendelson, the nation’s largest employment and labor law firm, recently released the results of its 2012 Executive Employer Survey Report.   The data was collected during April and May via email to in-house counsel, human resources and C-suite executives primarily throughout the U.S. 

The respondents included In-House Attorneys/Corporate Counsel (45%), human resources professionals (41%) followed by C-Suite executives and other professionals (7% respectively). 

Addressing multiple areas of workforce management, including recruiting, retention, and training, the survey also addressed the impact of the presidential election and the candidates' perceived ability to create jobs. 

Underemployment, difficulty in transitioning away from a job that is not a good fit to one that is, and a removal of resources, all continue to be barriers to today's job market.  Sixty-seven percent of respondents say that underemployment is continuing to impact the workforce as a result of "inability to secure high-level jobs."  85 percent say that job immobility is still an issue and 91 percent indicated workers today are asked to do more with less.   However, it is encouraging to note that 71 percent of the respondents say their company plans to hire new workers within the next 12 months.

In addition to job creation, top issues expected to receive a high priority from President Obama were healthcare reform (81%), union organizing (64%) and workplace discrimination matters (59%). 

Presidential candidate Romney will place a high priority on immigration reform (50%) and healthcare reform (48%). 

Regardless of the presidential outcome, respondents think that the next president will assign a very high priority to job creation (85% Romney followed by President Obama at 70%).

In addition to addressing regulatory issues such as healthcare reform, anti-discrimination and the NLRB, healthcare reform and Union organizing appear to be the top concerns.  A strong majority (64%) of respondents felt that healthcare reform would have a significant impact on the workforce over the next few months.  NLRB/union organization matters followed closely with 41%.  This is likely attributable to controversial "right to work" legislation in states including Wisconsin and Indiana and its effect on organized labor. 

H.R. 1004: Medical FSA Improvement Act of 2011

The Medical Flexible Spending Account Improvement Act of 2011, introduced recently by Reps. Charles Boustany (R-LA), John Larson (D-CT), Erik Paulsen (R-MN) and others, aims to encourage more people to use health care FSAs by eliminating the so-called “use-it-or-lose-it” rule.

The Medical FSA Improvement Act of 2011 amends the IRS Code to allow amounts in FSA (Flexible Spending Arrangements) plans, that are NOT spent for medical care, to be distributed to the participant as taxable income after the close of the plan year.  Previously such unspent amounts were forfeited by the participant to their employers at the end of the plan year (or grace period where one was offered).

The new bill, passed by committee by a 23-6 vote, would allow employees to withdraw up to $500 in taxable cash at the end of the plan year (or grace period). And the withdrawal would have to be made within seven months of the end of the plan year.

The Congressional Budget Office issued a summary regarding the impact of H.R. 1004 on the Federal Government.  In the report, the office states that “. . . . estimates that enacting H.R. 1004 would reduce revenues by about $4 million over the 2012 – 2022 period.”   

In related news:  

Earlier the IRS announced it would consider “modifying” the 28-year-old “use-it-or-lose-it” rule because the new $2,500 cap on FSA contributions limits individuals’ ability to defer large amounts of tax-free compensation into an FSA.  

The IRS guidance (www.irs.gov/pub/irs-drop/n-12-40.pdf) clarifies these aspects of that rule:

• The rule is effective for plan years starting on or after Jan. 1, 2013. The limit does not apply to plan years that begin prior to 2013.
• Employer contributions do not count toward the $2,500 limit.
• The limit is per employee. If a husband and wife both work for the same employer, each may make contributions of $2,500 per year.
• Grace period amounts from 2012 carried into 2013 do not count toward the limit. Plans can provide up to two months and 15 days in which salary contributions may be used by the employee before being subject to the “use-it-or-lose-it” rule, and the carryover does not count against the subsequent plan year’s $2,500 limitation.
• If an employer, due to “a reasonable mistake,” allows an employee to contribute more than $2,500 out of his or her salary, and the mistake is corrected by the employer, the plan will not cease to be a valid plan.

Sensitive Information and Security

I don't like to point fingers.  I really don't.  But in this particular situation, I feel that a bit of awareness is needed.

I’m sure you have, at least once in your life, had a drug screen.   We all have.  It's generally a part of any employee's pre-screening process.  During a drug screen a Chain of Custody form is used.  This form reflects the name of the individual being tested as well as their Social Security Number which is used as an identifier. The Chain of Custody Form has been given a status as a legal document for it has the ability to invalidate a specimen that has been tampered with and does not have complete information written on it.  The key words here are “legal document.”  Based on the information reflected on the COC, the form should be monitored to ensure the security of the information provided on the form. 

For the past year, Excel Urgent Care has been our drug screen program vendor.   To protect the integrity of the information reflected on the COC forms, and due to the lack of a secure fax line in my area, Excel has been instructed to mail the employer section of the COC to me.  *I don't like the idea of the COC, with such sensitive information on it, just sitting in a fax box.*

Last week I received a large envelope that contained approximately 35 employer copies of the COC form.  The problem?  Not one of the COC forms in the envelope represented an employee here at Company T.  This sensitive information had been disclosed to a third party, me.   That afternoon  I made a trip to Excel to return the documents and have a brief discussion with the office staff impressing upon them the seriousness of the situation and how critical it is to ensure that this information is protected.    If I’m receiving information on third parties, where, potentially, is my information going?

Yesterday, I received another envelope from Excel Urgent Care.  It was addressed to “Child Protective Service” but mailed to my office address.  The information contained related to a CPS Investigation and a pending divorce.  Not only were the COC forms enclosed, but other sensitive information as well.  The receipt of this information necessitated a second trip to Excel.  However, this time I was able to meet with the manager to express my concern.  She was not aware of the first incident but promised to take the necessary steps to ensure that this type of error did not reoccur.  Without the words being uttered, she understood the potential legal risk associated with the disclosure of this information.

Let's keep our fingers crossed shall we?

In Closing:  Training is critical to ensure that employees protect and treat this sensitive information like a controlled substance.

Flexible Work Arrangements - Where Are They Now?

In 2010 President Obama said making workplace rules flexible “isn’t” only a women’s issue.  "We know that companies with flexible work arrangements can actually have lower turnover and absenteeism and higher productivity," Obama told guests at a dinner for Fortune magazine's Most Powerful Women conference in 2010.  "This is not just a women's issue, or just a work-family balance issue.  It's an economic competitiveness issue."  The Obama administration is clearly on record as promoting flexibility.

Where are we now?

On February 29, 2012 Rep. Carolyn Maloney (D-NY) and Sen. Bob Casey (D-PA) reintroduced the Working Families Flexibility Act (H.R. 4106, S. 2142), a bill that would provide employees with a statutory right to request flexible work terms and conditions.

This new legislation would authorize an employee to request from an employer a change in the terms or conditions of the employee’s employment.  To be eligible, the employee would have to work an average of at least 20 hours per week or a minimum of 1,000 hours per year.  This new bill would only apply to employers with more than 15 employees.

Under the proposed bill, a flexible work arrangement request from the employee must relate to: (1) the number of hours the employee is required to work; (2) the times when the employee is required to work or be on call for work; (3) where the employee is required to work; or (4) the amount of notification the employee receives of work schedule assignments.

Upon receiving a request, an employer would be required to hold a meeting with the employee to discuss his or her application and provide a written decision regarding the application “within a reasonable period” after the meeting. If the application is rejected, the employer would be required to provide a reason for the denial. The employer would be permitted to propose an alternative change to the employee’s hours, times, place, and amount of notification of schedule assignments. If the employee is dissatisfied with this proposal and has another supervisor, the employee would have the right to have the other supervisor reconsider the alternate schedule.

Do flexible work arrangements work?

In 2006 the city of Houston promoted flextime as a way to ease the notoriously congested highways.  The "Flex in the City" program was successful.  It slashed workers' stress, boosting their performance and saving money.   The August 2010 Analysis of Alternative Work Schedules issued by the Texas Comptroller of Public Accounts stated that "AWS benefits retention efforts more than budgets.  Survey responses indicate that while some entities have seen savings from AWS, employee retention and satisfaction are the most common benefits.  AWS should be considered primarily as a means to recruit and retain employees."

Yes, there are challenges to Flexible Work Arrangements.  They may not work in some industries/companies.  But there are benefits.

Employee Negativity

Spring is officially here. Unfortunately over the past few weeks I have seen an increase in employee negativity. A fellow manager pointed out that, “Maybe it's Spring Fever." Well, maybe not.

Unfortunately this negativity is impacting person:person communication, which ultimately impacts our ability to function as a cohesive team. Employees have become preoccupied with their personal agendas, their set of complaints, etc.

From the senior manager at the top of the organization to the support staff at the bottom, negativity exists. Negativity can be seen in attitude, outlook or a chorus of voices responding to a workplace decision that adversely affected them. In the earlier stages, we begin to see errors/poor work quality, personality conflicts, poor morale, absence/lateness issues. When negativity becomes intolerable, people leave.

Whatever the cause in any environment – it needs to be addressed. And quickly!

How can you manage it? Let’s use my CIA approach.

First, Communicate. Talk to all the people you need to, get all the facts that you can so that you can Identify the problem. Sometimes allowing employees just to vent helps. *HR should always be a safe haven for employees to vent* Once you identify the problem – Act and address the issue. As an example, if there is a negative response to a recent change in the work environment – clearly communicate with employees. They may not be aware of the inner workings of the decision. With the information, a better understanding may occur.

The negativity in your workplace may be situational. Or, far worse, it may be chronic. Under any circumstances, it must immediately be addressed.

Intelligence and Impact on Sick Leave

The below blog is dedicated to Aaron. He never takes a sick day. Ever. At some point he can cash all those days in and buy a house in Rock Creek.

Okay, here's the blog.

A recently published study, from the UK, offers an interesting theory that the better people performed on childhood intelligence tests, the less likely they were to end up on long-term sick leave. The study involved over 23,000 people whose cognitive abilities were tested in 1946, 1958 and 1970. The ranking of cognitive ability was based on testing both the verbal and nonverbal intelligence. Okay. So now there is a clear link between low intellectual ability and long-term work absences?

• In the 1946 group, 47% of those who were on long-term sick leave had been in the bottom quarter of childhood ability, compared to 13% who were in the highest category.
• Approximately 41% of those off sick from the 1958 group were in the lowest quartile of ability, while 32% of the 1970 interviewees were also in this category.

The authors claimed that strategies to reduce long-term sick leave should involve education. "Our findings suggest that health is only one factor in understanding long-term sickness absence." The U.K. report, written by experts including Max Henderson of King's College London, concluded: "Long-term sick leave is a complex outcome with many risk factors beyond health."

Let's talk about the U.S. for a moment. In 2010 a report in The New York Times addressed the Wisconsin Longitudinal Study. This study tracked the 1957 graduates of the state's high schools, approximately 10,000 people, and noted that "those who finished in the top quartile were, overall, half as likely to experience the declines in health that their peers who graduated in the lowest quartile were experiencing." The study, started at UW-Madison in 1957 as a survey of high school seniors' post-graduation plans, evolved into a study of the entire life course. Education, career, family, aging and retirement.

My question to you, is there really a correlation between intelligence levels and the likelihood that someone will end up on long-term sick leave?

Will employers begin testing employees intelligence levels to determine the likelihood of potential long-term sick leave, and therefore the potential impact to benefits?

So, who is regularly sick where you work?