Your Employee Matters

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.

The question “Can we still provide executive physicals or is that now considered discriminatory?” was posed to the ThinkHR Hotline team recently. Here is the answer provided:

There are existing regulations under the Internal Revenue Code Section 105(h) nondiscrimination rules that allow benefits for “medical diagnostic procedures” to be paid to highly compensated employees without giving the same benefit to the non-highly compensated employee group. Under 26 CFR 1.105-11 (g) – SELF-INSURED MEDICAL REIMBURSEMENT PLAN., the rules allow that distinction for an employee class if the procedures are:

• Performed at a facility that only provides medical or “ancillary services”;
• For routine medical examination, blood tests, X-rays and similar tests; and
• Do not include treatment, cure, or testing of a known illness or disability, or treatment or testing for a physical injury or specific symptoms.

Most benefits experts believe that this section of the Code allows for executive physicals that feature routine medical exams, blood and other diagnostic tests, and as long as no treatment is provided, then the nondiscrimination rules will not apply. The Affordable Care Act contains provisions to extend nondiscrimination requirements to fully insured plans, but that portion of the regulation has been delayed until further notice.

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.

Ethical workplaces start with the leadership of a company. Leaders play a critical role in creating and maintaining a company culture and fostering an environment that supports ethical practices.

In small businesses, leaders are typically more visible to employees, and the manner in which they model the organization’s ethics and values is readily observable to all. Whom the leader hires, what programs and activities he or she supports, what behaviors he or she exhibits personally, and the rewards or criticisms given to others are signals to the rest of the organization of what’s really important in terms of company culture, values, and ethics.

Leaders must “walk the talk” and lead by example to create and foster an environment that embeds ethics into the company’s culture and includes integrity, honesty, and doing the right things right when getting work done within the company.

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.

How does an employer handle a potential issue where an employee is suspected to be using illegal drugs?

While you would want to have “just cause” or reasonable suspicion prior to “accusing” an employee in this case, nothing bars you from having a conversation about observed behavior in the work place. Exercise caution as to the business necessity, in the event a prescription medication may be at cause, as this can be covered under the Americans with Disabilities Act (ADA).

Reasonable suspicion is not merely rumor or speculation but rather based on specific, objective facts and rational inferences from observing an employee’s behavior. Specific objective facts and rational inferences drawn from those facts must justify reasonable suspicion. Evidence sufficient to justify reasonable suspicion does not need to rise to the level of full probable cause. This may include alcohol on the breath, lapses in performance, inability to appropriately respond to questions, and physical symptoms of alcohol or drug influence.

According to various sources, examples of drug and/or alcohol abuse include, but are not limited to, the following signs:

• Odor of alcohol
• Odor of marijuana
• Slurred speech
• Fast speaking out of the ordinary
• Flushed, swollen face
• Red or runny eyes or nose
• Pupils dilated or constricted, or unusual eye movement
• Lack of coordination
• Tremors or sweats
• Weariness, exhaustion
• Sleepiness, or unusual hyper action

In reference to testing for substances based upon this, even with an accumulation of facts and rational implications to be used for conducting a “reasonable suspicion” test, it can be dangerous for the employer to order an employee to submit to drug testing. It is wise to have two separate witnesses to the behavior, including a supervisor; to have all supervisors trained to detect signs of usage (this does not have to be a certified training); and to escort the employee to and from the lab involved. Important to note, is that the employer must have a substance abuse plan and policy in place before taking any such action related to testing.

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.

Whether you’re making a sales presentation or one to your executive team, here are some tips I have learned speaking to hundreds of groups that can help your presentations.

1. Be yourself – Don’t try to copycat another person’s style. If you’re humorous by nature then bring that into your presentation. If you’re historic by nature then be your serious self.
2. Think about liking your audience…before you speak to them – What type of energy do you bring into a presentation? Remember you communicate with people not just on a logical level but an emotional one as well. Your goal is to create a connection. Your work to that goal begins before you ever speak to somebody. Go into the presentation focusing on liking your audience and they will like you in return..
3. Ditch the power paragraph – It’s called PowerPoint for a reason. Keep your messages simple and visual. If you’re going to use a PowerPoint presentation use few words to communicate and idea and using pictures in place of words is even better. Look at the book Zen Presentation and you will get a deeper understanding on what I mean.
4. Watch providing too much information– As a high content speaker I face this challenge. Instead of trying to tell people everything you know, try to focus on the three things that will be the greatest benefit to them. To an extent, you can serve people before or during the presentation to help focus your content even better.
5. Engage in feedback – Ask people to raise their hands if they agree with you. Ask them to share any ah-ha’s gained from the presentation. Ask them what follow up information they would like from you.

Be Prepared –Last, one thing I will always be is highly prepared for any presentation I give. That is part of the training of a trail lawyer. What you don’t want to do is fumble around during your presentation. Make sure to practice your presentation over and over again until you get it right. Then find somebody to present it to whether it’s your dog, cat, kids or a herd of cows. They will be a non-judgmental audience. Once you get comfortable to your presentation without judgment then solicit it to friends and colleagues.

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.

We have all had the experience of going to a restaurant with a large party and finding that 18% tip charge on our bill. We can also find them on meals delivered to our hotel rooms. Any company that opposes those charges must be on notice that beginning in 2014 automatic gratuities are classified as service charges rather than tips. This means that while the employee will be taxed the same, the employer will lose a special tax credit available for paying its share of payroll taxes on the gratuities. For the rest of us the impact means there will be no more automatic gratuities created but rather suggestions to pay a gratuity.

To see the IRS ruling click here.

We love Success Magazine. If you don’t subscribe to it, you should. It comes with a great monthly magazine focused on a basic theme per month along with a great audio CD you can listen to in your car. The December issue had an article titled “Taking Care: Panda Express Nurtures Employees So They in Turn Treat Customers Well.” This is not rocket science. I remember a Southwest executive telling me once that if we take care of our people they will take care of our customers and that will take care of our profits. Since their inception this has held to be true. The Success article was an interview with the CEO of the $1.8 billion company, Andrew Cherng. Here are some pointers that he made to help nurture your workforce:

1. “The environment here is about personal growth, personal well-being. When you are healthy mentally, physically, emotionally, spiritually—when you’re doing well, you’re likely to do good things in your life and that’s what we advocate.”

Tell me you wouldn’t want to work for a boss like this!

1. “The environment is a way you see the future. One person at a time.”

Cherng realizes your environment and culture is a choice. As he stated, you can only build a culture through individuals; one person at a time.

1. “People who are successful tend to take care of those little things very well. And then they accumulate credit, resources, and do whatever it is that you need in life—that’s the preparation for success.”

 Do you take care of the little things very well? Have you accumulated credit, resources, and do whatever it takes to prepare for success? As the saying goes, when you take care of the little things the big things tend to take care of themselves.

1. “We can all do a better job. And when we do we all get rewarded. The reward may come in just being happy or in other people being happy. When you do your job well, your customer feels that and your business blossoms”

How motivated are you and your fellow employees to not do just an average job or a comfortable one but an extraordinary, awesome one? Are they doing tasks in a way that make them feel happy?

1. Cherng suggests that management should ask employees: “Are you being mindful? Are you putting your heart into the work? Are you passionate about your work? Are you loving your environment? Our job is to raise everyone’s levels of understanding and caring. When you raise the level of caring, you see a good result.”

While we think of ourselves as good people and have good intentions we often times don’t manifest that. An excellent book was written about it “Leadership and Self Deception.” The essential theme being that we deceive ourselves; that we in fact manifest caring. What have you done lately to show employees that you care?

Lastly, we love the Panda Mission Statement. “Deliver exceptional Asian dining experiences by building an organization where people are inspired to better their lives” What can really be more important than this statement? We live in an experience economy and the whole purpose of any business is to increase human well-being. What a wonderful opportunity for every one of us!

What do these people have in common? Answer: they are work comp frauds. Want to see a few more mug shots? https://www.flickr.com/photos/ca_dept_insurance/

There’s no doubt that where there’s money to be had, there will be fraud. Employers nationwide have been subject to a growing abuse of those learning to “work the system.”  While it is an easy story to paint the boss as a bad guy, there are plenty of stories where it is the employee who is playing the villain role. California has been stepping up its fraud prevention efforts.  It has made over 500 arrests in the past three years http://www.insurance.ca.gov/0400-news/0100-press-releases/2014/release040-14.cfm

If you suspect fraud, speak up about it. Contact your broker and, if necessary, your department of insurance fraud division. Fact is, most injured workers are not frauds. They want to resolve their injuries and get back to work. Most employers genuinely care about their employees. It’s the bad apples—be it the employer or employee—who ruin it for the rest of us.

Here’s a quick look at 26 subjects (there were more) discussed in the dozens of HR magazines, blogs, and newsletters reviewed over the last few months. This should help wake up anyone who doubts the complexity and value of the HR function.

1. Measuring telework productivity
2. Problems caused by pay disparities
3. Hiring the over-qualified
4. Which recruiting tool should I use?
5. One-third of HR execs seek greener pasture
6. Gender disparities causing resentment and claims
7. Mobile recruiting
8. Talent and succession management
9. Dumping spousal coverage pros and cons
10. Breaking past employee disengagement
11. EEOC and legality of background checks
12. Bringing mindfulness to work
13. High stress
14. Benefits management and DOMA
15. ACA, ACA, ACA
16. Hiring, hiring, hiring
17. Weed at work – what to do?
18. EEOC collects a record $372 million in 2013
19. Measuring meaningful HR outcomes
20. Using big data
21. Gen X, Millennials, and Gen Z
22. Workers working longer, foregoing retirement
23. Banishing the bullies
24. Work/life balance and career success
25. Building cultural muscle
26. Employer branding initiatives