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•Travel Arrangements

•Air Travel

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The Equal Employment Opportunity Commission (“EEOC”) has set its sights on employers’ wellness programs, which many organizations have set up as a way of encouraging employees to adopt healthier lifestyles and improve productivity, reduce absenteeism due to illness, and control health insurance costs. The EEOC’s latest action against Honeywell International, Inc. (“Honeywell”) is evidence that the EEOC has no plans to wait and see whether the courts will agree with its position in the first round of cases asserting that aspects of such programs are unlawful.

In late October, the EEOC petitioned a federal district court judge in Minnesota to stop Honeywell from applying penalties and costs against employees based on their participation in biometric testing of employees and their spouses as a part of its wellness program. The EEOC contends that if employees or their spouses fail to participate, they will lose Honeywell’s contribution to their health savings account and face up to $2,500 in health insurance surcharges. The EEOC argues these consequences for non-compliance violate the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

In a positive sign for employers, the district judge denied the EEOC’s motion for a preliminary injunction and will not block Honeywell’s administration of biometric testing and assessment of health insurance-related surcharges. The judge has not yet ruled on the legality of Honeywell’s wellness program. However, the judge opined that Honeywell’s program initially appeared to comply with the Patient Protection and Affordable Care Act’s (ACA) surcharge limits, and she expressed some reservations about the EEOC’s claim that Honeywell’s wellness program violates federal law.

Based on public records, Honeywell’s wellness program has many more safeguards and even-handed components, such as the ACA-compliant incentives/penalties and alternative means of participation in wellness activities, than the programs challenged by the EEOC in previous litigation this fall. Those previous cases allegedly involved wellness programs that imposed heavy financial burdens for non-participation, such as having to pay the full cost of one’s employee health insurance (both employer and employee shares of the premium). Thus, the EEOC’s challenge to Honeywell’s plan is somewhat perplexing, as is the continued absence of guidance from the EEOC on what is permissible in wellness plan design.

Contributed by Laura Anthony of Elarbee, Thompson, Sapp & Wilson LLP  www.elarbeethompson.com

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.

The case of In re: Beth V. Beth V., Appellant, v. New York State Office of Children & Family Services et al., Respondents. Workers’ Compensation Board, Respondent was an appeal from a decision by the New York State Workers Compensation Board that settlement proceeds from an employment lawsuit against the company should offset any workers compensation payments due based on the same set of facts. What’s not important for this article is the right to such an offset. What is important was how poorly the New York State Office of Children and Family Services responded to the sex harassment claim brought by Beth V. Long story short, Beth V. was hired by OCFS as a youth division aide and was assigned to work in the kitchen. M.E., a male resident, was given kitchen duty as part of a facility work program. One day when M.E. stepped away from the dining room, Beth V. confiscated a notebook he had brought with him to the kitchen. Apparently she did so because he told her he was writing notes about her of a sexual nature and had made crude, sexually explicit gestures. She gave the notebook to the youth division aide on-duty. M.E. threw a fit when he discovered this.

After the incident, Beth V. told various supervisors and fellow employees she felt unsafe, uncomfortable, and fearful of physical and sexual harm from M.E. Thena few days later, Beth V. was in an office off the kitchen, logging out from work, with her back to the door. M.E. accosted Beth V. from behind, taking her by surprise. He choked, punched, and raped her at knifepoint. Then he forced her to turn over her keys to her Jeep and abducted her from the camp. Beth V. eventually escaped when M.E. stopped to make a phone call at a pay phone and reported the crime to the local police station. She sued OCFS and eventually settled the case for $646,000, of which she ended up with $430,000. It was these monies that the workers compensation underwriting claimed it had a right to offset.

I can tell you that from my years of trial experience that if this was a private employer the punitive damage element would have been in the millions.

Bottom line is this: Take all claims of sexual harassment seriously. During my career I represented three women in Beth V.’s position and it’s not a pretty picture. In 2 out of 3 of these situations a decent investigation and follow-up action could’ve prevented the horrible outcome.

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.

Now that we are hitting winter hours and get even less sunlight…it’s time to light it up! Employees who work in buildings without windows or in cubicles in the middle of a floor are susceptible to light deprivation disorder (LDD). Study after study has shown the benefit of increasing employee’s exposure to sunlight and non-fluorescent lighting. LDD symptoms can include insomnia, napping, depression, and lethargy. Even a corner office is still unlikely to get the 2,500 lux (the level of light the sun emits during daytime hours) that your body needs to be fully functional.

For more information about LDD or Seasonal Affective Disorder (SAD), go to www.nlm.nih.gov/medlineplus/seasonalaffectivedisorder.html andwww.lighttherapyproducts.com/articles.html. To learn how you can improve lighting at a computer workstation, click on www.nih.gov/od/ors/ds/ergonomics/lighting.html.

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.

In today’s knowledge economy, you need well-trained workers to leverage your bottom line. Training can be either technically or emotionally based. Although it’s relatively easy to provide technical instruction through written or computer-based resources, emotional training often requires people to communicate with each other directly, often in conjunction with online training.

To develop and maintain effective training programs, we recommend these guidelines:

1.     Create a training system. Commit to training as a process, rather than an event. Set clear standards for your hard and soft skill-set needs. Create a strategic plan, budget, and schedule.

2.     Provide the right tools. Not all training resources are created equal. You want to examine the user experience of the training platform (Learning Management System) as well as the content available.

3.     Follow up. If one-time training worked, you could ride a bike after reading a single book on bicycling. Provide a continuing process to help employees incorporate what they learn during the training experience.

4.     Offer incentives. Give your employees rewards or payoffs for their participation in training programs. These incentives can be either financial or non-monetary perks (dinners, entertainment tickets, and so forth). Reward and reinforce the learning experience so that the employee wants to repeat it.

5.     Leverage training. Whenever an employee gains a valuable insight during a training session, encourage them to share this information with co-workers who it might affect. Multiply the impact of training by having workers immediately use what they’ve learned to help the company run more effectively.

6.     Know who pays. It can be hard to determine whether a worker or their company should pick up the tab for third-party employee training. Here are some brief pointers on the legal obligations involved:

• An employer must compensate for mandatory training time unless it’s directly related to professional licensing;
• Time spent on voluntary training is not compensable if it’s outside normal working hours and not directly related to the employee’s job. For example, training a programmer on using a current application is compensable; paying for an MBA program so the employee can become a future manager is not;
• Training that directly benefits an employer is always compensable. For example, new-hire training on welding procedures on an object eventually purchased by a client is compensable; voluntary welding training that results in no end product is not.
• Training expenses can be reimbursed on a pro-rata basis if an employee agrees to do so beforehand and leaves the company a short time afterwards. So, if the employee goes through a year-long training program that costs the company $10,000 and they take another job a month later, it’s appropriate to demand reimbursement for most, if not all, of this expense;
• An employer that operates a for-fee training program cannot use completion of the program as a condition of hire.

7.     Sell it to all stakeholders. Know that you have a sales job to do so that you have the full support of executives, managers and employees. This means you must show the benefit to each group that exceeds the value of the time and money commitment.

There you have it. The basic, yet powerful, formula for training success!

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.

Demographic studies reinforce our daily experience: it’s getting harder and harder to find good employees — but not for everyone! Whether you’re a local contractor or national airline, there’s an employer of choice in every market; these companies find good people knocking on their door because they enjoy a high Attractiveness Factor. For example, Southwest Airlines is probably getting far more qualified candidates than United, American, and Delta because they have a business model and culture that attracts employees, rather than repels them.

Survey after survey reveals that one third to one half of the employees in any industry are looking for a better employer — a far higher figure than the 5% to 15% unemployment rate in those industries. Why would these people, who already have jobs, leave to come work for you? Your Attractiveness Factor is related directly to the job satisfaction of your existing employees. Great Places to Work Institute Award winners have an 82% satisfaction level. You can bet that the recruiting offices in these companies have a far easier time than their competitors.

To improve your Attractiveness Factor, we’d recommend these steps:

• Put the right people on every seat of the bus. No excuses. Nothing upsets team members more than management placing the wrong employee on their team — especially without their input. Have the discipline required to hire only the best.
• Have your employees market on your behalf. Referrals from existing employees are a great source of leads. Also, get employees involved in the hiring process by using such tools as group interviews.
• Show employees that you care by asking them what they need to be successful and take pride in their work. This applies even when they’re leaving. On average, one dissatisfied customer will tell seven people about their grievance — and it’s no different with a dissatisfied employee. When you terminate someone, do it with grace and understanding. Conduct exit interviews to address any potential resentment that might fester into a lawsuit or negative social media campaign.
• Brand your company as a great place to work. Southwest Airlines brands the fact that their employees Love the Work They Do Every Day. Zappos states on its hiring page “Sure, we know that Zappos is a phenomenal place to work but it’s pretty cool when others recognize how great our company is too. Learn more about the awards, news features, benefits and incredible perks that set our company apart.” Now that’s branding! What’s your brand? How do you show and tell it?
• Lighten up. Whether you label it fun, joy, love, or nonsense, find a way to whistle while you work! Many of us are looking for that something extra out of our daily grinds. Tap into that opportunity and you’ll increase your Attractiveness Factor!

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.

Recruitment bonuses can be a powerful tool for growing your workforce. To set an effective price point for employee referral bonuses, consider:

• The cost of using recruiters (up to 25% of the employee’s first-year salary)
• The rate of turnover in the position
• The income generated by the position
• How strong the need is to find the employee
• How much your competitors’ referral programs are paying

Now that you have a referral amount in mind:

• Define the skills, experience, and personality desired on a one-page sheet that employees can use to describe the job opportunity. This reduces the variance in describing the opportunity.
• On a separate sheet, give them a place to fill in follow up contact information for job prospects.
• Consider paying the bonus in installments (for example, 1/6 every 30 days). Make it clear that the total award will be paid only if the new employee works the full six months.
• Some companies include vendors, customers, clients, and others in this process using the same approach. The only caveat here is to watch potential conflicts of interest.

One company that hires predominately customer service reps gives every CSR a stack of business cards so that when they interact with someone who offers good service, they can hand them a card. The back of the card says something to the effect of, “You’ve given me good service today. Our company is always looking for people who can provide good service. If you’re interested, contact us at (123) 456-5678 or go to company.com.” It’s important to provide guidelines for avoiding conflicts of interest. The last thing you want your employees to do is hand those cards out at a client’s office!

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.

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.