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7 Affordable Ways to Boost Morale

October 28 - Posted at 1:00 PM Tagged: , ,

You don’t have to spend a lot to make a big difference in your workplace.  Many of the ideas below show how effective HR can be by simply helping employees relax, connect and enjoy each other’s company. And the end result….happy people are productive people.


1. Give Employees a Voice
For some companies, boosting morale and encouraging teamwork are orchestrated parts of a specific plan to give back to the community. Other companies simply gather volunteers and go for it—they hold events with the primary aim of letting employees have fun and enjoy each other’s company. 

Employees at one company volunteer to serve on an engagement committee. In the past, they have proposed a variety of events, including collecting food for local charities, decorating the lobby for holidays and holding a Halloween costume contest.

Don’t let managers do the event planning. Let employees make the decisions as that helps them feel listened to.

Employees at this organization have been receptive and this has even had a positive impact on their clients. These events have reduced employee turnover to 22 percent from 36 percent in six months.

2. Encourage Friendly Competition
They’re energetic employees, and sometimes they need to blow off steam. So why not have a tug-of-war? 

That’s what Symplicity Corp. in Arlington, Va., invites its employees to do periodically throughout the year.

About 30 employees gather in the parking lot, and the tug begins. They pull, they huff, they puff. Or they collapse in laughter. The game is a great diversion and has been a hit with employees.

Symplicity’s tug-of-war isn’t competitive. (Well, maybe a little bit.) Nor is it expensive: The thick, braided rope cost $70, she says, and has been re-used numerous times.

Other inexpensive events include:

  • Game nights. Employees bring games (especially strategy-based games) to the table. Outside the office, employees join in online or Xbox games. The company provides $30 worth of snacks and beverages.
  • Guest speakers. Once a quarter, a guest speaker is invited through a professional network. The topics, including cybersecurity and healthy living, can be work-related—or not. 

Employees also are invited to movie nights, live music events and camp-outs.

The events are orchestrated by Symplicity’s “party people group,” about eight to 10 volunteers who get together each February to brainstorm events for the year.


3. Promote Healthy Living
A San Diego hotel group relayed the importance of healthy eating to its housekeeping staff by providing nutritious snacks, including apples, frozen fruit trays, salad and healthy burritos every Friday.

The hotel partnered with a community program, Live Well @ Work, to teach about nutrition in fun, positive ways.

The hotels arranged to help employees understand the ins-and-outs of nutrition labels and demonstrated, for example, how much sugar is in a bottle of soda. The organization tapped community groups and the American Red Cross to provide free recipe books and pedometers. The hotels also scheduled occasional exercise sessions for some pre-work stretches.

“Fruit Fridays” has proven to be an extremely successful program and very low-cost. Not only has it helped increase employee engagement but has definitely improved morale and provided a short break from the normal day.

4. Get Employees Moving
Talk about throwbacks. Scranton Gillette Communications runs a Tour de France tricycle race for employees. No, that’s not a typo. Tricycle race.

For the past two summers, the company’s HR department has rounded up donated tricycles and scheduled a fairly slow “race” around the office parking lot.

As employees tackle each 50-yard race to make it to the next round of competition, their colleagues staff hydration stations. To top it off, the winners take home small trophies. 

The company is big into fitness programs and cheerleads for other events, too. It runs a summer challenge encouraging employees to count their steps. HR team members keep a spreadsheet to log their steps over a four-week period. Prizes are given for the most overall steps, the most improved participant and the first to reach a personal milestone, such as 50 or 75 miles. 

Their HR team also sponsors a “stairmageddon,” calling on its 130 employees to count the number of stairs they climb in a day. The person who takes the most flights wins a gift card.

Other fun events include a mini-golf tournament (played in the office hallways), a Wiffle ball home run derby (scheduled to coincide with the start of baseball season), and a paper airplane contest which has employees launching their creations into an atrium from the second floor.

It’s not all about fitness, though. Employee appreciation is also shown on Strawberry Shortcake Day and Root Beer Float Day with low-cost (if not low-calorie) treats.

Employees also enjoy no-cost activities such as designated days to wear their favorite sports team jerseys. 

Each employee who participates receives a raffle ticket. At the end of the month, one employee wins a $20 gift card and is featured in the next employee newsletter. 

5. Communicate Clear Goals
Games and fun events can do more than just bring people together. 

One of the most important things a company can do is let employees know what’s expected of them. But that wasn’t happening at Hi-Grade Welding and Manufacturing in Schaumburg, Ill. So the HR team sought ways to improve communication between managers and the company’s 116 employees. 

Changes began with the purchase of two $500 televisions, one for the shop floor and another for the lobby. Each department’s goals are displayed on the TV screens, along with numbers reflecting the amount of rejected products. The quality of work has improved (and the amount of rejected products has been reduced) since the statistics have been shared openly. That simple change helped motivate and engage employees in a friendly competition with other departments to improve quality, she adds.

6. Help the Community
One of Symplicity’s most popular events is a program coordinated by the company that enables employees to volunteer at a local food kitchen.

Employees also take paid time off from work to read to children and participate in Earth Day cleanups.

7. Say Thank You
Two years ago, Jennifer, an HR assistant manager at Enertech Global LLC in Mitchell, S.D., was looking for a way to recognize the company’s 116 employees.

She glued a penny to a piece of card stock and added the words, “Just like finding a penny is good luck, we are lucky to have YOU. Thank you for everything you do every day.” As an extra touch, the plant manager signed each card. 

There are people that have theirs hanging up which proves that at the end of the day, we all just want to feel wanted and appreciated.

That’s why the HR team at Clarus tries to do something special when employees are working on major projects and under a lot of stress. The HR professionals hand out small gifts along with notes expressing their thanks.

The gestures help maintain morale and let “employees know we appreciate all they’re doing for us.”

The HR team also tries to introduce a little levity into their messages to lighten the workers’ mental load. In the past, employees have received a bag of microwave popcorn with a note: “Bursting with excitement you’re on our team!” or a Mounds candy bar with the message: “Thank you for the mounds of work you’re doing!”

Other small gifts to show gratitude include:

  • Highlighters. “You’re the HIGHLIGHT of our day.”
  • Fun-shaped paperclips. “Thanks for keeping things together around here.”
  • Chewing gum. “Your hard work BLOWS us away.”
  • Mentos mints. “We’ve MENTO tell you how much we appreciate you.”
  • Donuts. “We DONUT know what we’d do without great employees like you.”

When the company wants to commend employees for a specific effort, they place messages on an employee’s desk before they start the workday. The surprise gesture helps them start their day off on a positive note.

Is Your Company Ready for An Applicant Like Parker?

December 06 - Posted at 5:01 PM Tagged: , ,

By Myra L Thompson, RHU, REBC, GBA

The gender identity of non-binary is not new. Throughout history and across cultures those who do not experience themselves as either male or female have been part of humanity.  As an HR professional, I didn’t have any idea what to expect should someone who identified as non-binary apply for a job with my company or with any of the companies we represent.

My research indicated that this group of individuals see themselves as a third gender if you will. Although they identify under an umbrella title of non-binary, these individuals will present in their own unique style. Though you may recognize male and female characteristics in their dress and hair, make-up or lack thereof, they are a separate gender that encompasses male and female, or lacks them, in a completely unique gender category. With that in mind, this group will often ask you to use the pronouns “they” or ‘them” when you refer to them.

When I met Parker, who identifies as non-binary, it happened to be on a day when Parker was waiting for a callback from a job interview. I asked Parker to walk me through their expectations of this potential employer. Parker wanted two things; respect for their non-binary gender identity and an opportunity to do excellent work for the company.  Respect meant that when they were referred to by a pronoun, that their peers and boss, to the best of their ability, use “they” or “them” rather than she or he.  

I found Parker to be hugely sensitive to how difficult that may be for those unfamiliar with the concept of a third gender.  Just try, Parker asked.

Then the pragmatic HR question surfaced. What type of bathroom situation would an employer be asked to provide? Parker is not completely comfortable in either a woman’s or men’s restroom.  Optimally an employer would offer privacy through the use of stalls in a Unisex bathroom or a single bathroom.  Both of these options, added to the existing men’s and women’s bathrooms in a company, would allow everyone a space to be comfortable.   Having said what was optimal; Parker was prepared to use whatever was available.

I should add that during our walk, Parker was offered and accepted the job.  I asked where in the interview process Parker presented the specific issue of gender identity and the requests related to changing the behavior of “their” new colleagues.  It would happen at onboarding, which was to be the following Monday. At some appropriate point during new hire orientation, Parker would offer information regarding their gender to the HR person and boss. Parker was clear that there was nothing legally that would prevent the company from walking them to the door at that point. Parker only hoped that since the company had selected them for the skills, knowledge and abilities they offered that the company would choose to keep them.

I share this conversation to you as I expect your HR department, if it has not already, will be having this conversation in the days to come. 

Can Online Behavior Serve as Grounds for Termination?

September 24 - Posted at 10:35 PM Tagged: , , , , ,

The bombs people drop on social media can detonate right away or lurk like hidden land mines. In some cases, someone is terminated from a current job for recent problematic posts. Take comedian Roseanne Barr, for example, whose tweet this spring  referring to Valerie Jarrett was deemed racist and deleted immediately, but ABC executives still dropped her from her sitcom.

Or take Kenneth Storey, a University of Tampa visiting assistant professor who lost his job days after his tweet last summer suggested that the Texas victims of Hurricane Harvey were experiencing “instant karma” for voting Republican. Storey deleted his tweet, but not before a screenshot of it had gone viral. 

In other instances, individuals lose a job for social media posts they made long before their employment began. That’s what happened to “Guardians of the Galaxy” director James Gunn, who was fired in July after comments he wrote on Twitter several years ago involving pedophilia and rape resurfaced. Even though Gunn said he regretted his words, it wasn’t enough to save his job.

When an employee posts something offensive, HR professionals are often on the front line of protecting the employer’s brand. Hiring managers also may be expected to act as defenders of the company if a candidate’s online posts have the potential to reflect poorly on the organization’s image.

Attorney Eric Meyer, who blogs about workplace issues, tracks news about employees whose offensive social media comments cause them to lose their jobs. He and other experts believe that this type of termination is becoming increasingly common. 

“A firefighter, for example, who puts out a racist meme … CEOs, public figures, you name it. The frequency with which I see incidents of people getting fired doesn’t seem to have declined. I don’t see any evidence that it’s getting corrected anytime soon,” says Meyer, a partner at FisherBroyles in Philadelphia.

Adding pressure to HR’s role is the ubiquity of social media and the speed at which comments can erupt into full-blown crises. “Sometimes, it’s not even a 24-hour news cycle anymore—it’s a 15-minute one,” says Betty Lochner, an HR consultant and owner of Cornerstone Coaching and Training in Olympia, Wash. “If you jump in there and get involved in a conversation that would’ve petered out on its own, that isn’t the best response either.”

But doing nothing may not be a viable option when business leaders are subject to intense pressure to terminate an employee who’s behaving badly. Determining how to respond is no easy task. HR professionals and executives must weigh the potential damage to a company’s image and reputation against their desire to foster a supportive workforce that doesn’t micromanage workers’ actions. 

Ultimately, business leadership must determine which behaviors cross the line. That evaluation process could begin whenever an employer learns about a potentially problematic post. “There’s not a cutoff or a statute of limitations for information,” says Jeff Polsky, an employment lawyer with Fox Rothschild in San Francisco.

Crossing the Line

The Internet has obscured the boundaries between people’s personal and professional lives, as more workers friend and follow their colleagues. The result is that employees may become privy to details about their co-workers’ off-duty activities, including their political affiliation, religious beliefs, drug use or participation in controversial causes, that otherwise would’ve remained private. 

“Social media has opened the door for us to know people’s intimate views on things that are not work-related,” says Joey Kolasinsky, SHRM-SCP, HR manager at Encore Electric Inc. in Denver. 

As people conduct more business and socializing online, Facebook and Twitter have become 21st century watercoolers, where workers flock to grouse, joke and vent. “These are conversations that previously would have happened in someone’s home or in a bar or on a soccer field, and it would have gone under the radar,” says attorney John Polson, a partner with Fisher Phillips in Irvine, Calif. 

But in today’s hyperconnected culture, an online comment or photo can spread like wildfire from one co-worker to another and then to multitudes of strangers. 

In the early days of social media, business leaders thought they could keep tight control over workers’ use of the platforms. Less than a decade ago, many companies introduced policies forbidding workers from making any negative comments online about the employer, says attorney Mark F. Kluger. Some employers even required workers to supply the passwords to their personal social media accounts—a practice that is now illegal in some states. 

But starting around 2010, the National Labor Relations Board (NLRB) began fielding complaints from workers who had been disciplined for their online behavior. The NLRB warned employers that their social media policies could not punish workers for discussing wages, working conditions and terms of employment, all of which are considered “protected concerted activity.” That can include complaints about management, low wages and lazy colleagues, and those protections extend to nonunionized workers as well. 

In addition, five states—California, Colorado, Louisiana, New York and North Dakota—protect employees from retaliation for engaging in lawful off-duty conduct and political activities, no matter how distasteful their colleagues may consider their affiliations. “If any companies in those states were to terminate an employee because they were a member of the Nazi Party, they might have a problem,” says Kluger, an attorney with Kluger Healey in Florham Park, N.J. 

Workers can, however, be axed for engaging in hate speech and making disparaging comments about protected categories of race, religion and gender. They can also be shown the door for disclosing confidential information and trade secrets, defaming competitors or misrepresenting the company. In general, though, a business has great latitude in deciding whether to terminate for online behavior. 

“It is entirely case by case,” Lochner says. “A company has to decide: What’s its reach? What’s the damage? There is no black-and-white answer.”

Don’t wait until a crisis erupts to decide which types of off-duty conduct are unacceptable. HR professionals, company leaders and other decision-makers should agree on a list of core company values so that they will know which behaviors violate organizational principles, Lochner says.

Setting A Policy

A social media policy and related training can help employees better understand the importance of demonstrating professionalism online and provide guidance on what types of online conduct may lead to termination. The HR team at ad agency RPA in Santa Monica, Calif., provides its 750 employees with a company policy and training on managing perceptions in the workplace. A recent session covered how offhand online remarks can affect someone’s image and reputation. 

“We try to offer employees tools for understanding the implications of something you might express in the social space,” says Laura Small, vice president, director of people, at RPA. The training was especially well-received by recent college graduates, who had little prior instruction on the business etiquette of social media, despite being avid users of the technology.

When employees misstep, the gaffes are usually due to what Small describes as “a lack of awareness” as opposed to malice. In one case, an employee saw a negative comment a colleague made online about the services of one of their company’s clients. The two employees were Facebook friends, and the content appeared on a personal page. The colleague contacted Small, who met with the person who made the post and explained why it was inappropriate. Mortified, the worker apologized. “We don’t want to kill free speech, but we want to be respectful of the clients we represent,” Small says.

​Even a comprehensive social media policy cannot anticipate every instance where it might be applied. “There’s no one-size-fits-all,” Polson says. “You need a policy tailored to your specific business. And you don’t want to be too broad; you don’t have to have a policy for every decision you make.”

An effective and comprehensive social media policy should be included in your employee handbook. The policy should ask employees to:

  • Refrain from identifying themselves as representing their employer and/or their employer’s views unless they are authorized to do so. 
  • Preface their opinions about their industry, employer or work duties with a disclaimer stating that their views do not necessarily represent their employer’s. 
  • Avoid sharing any proprietary or confidential information about the company or its customers, prospects, partners or suppliers.
  • Never post anything threatening, harassing, bullying or defamatory or that could contribute to a hostile work environment by disparaging others based on race, gender, disability, religion and any status protected by law or company policy.

New Scam Targeting HR & Payroll

April 05 - Posted at 3:26 PM Tagged: , , , , , , , ,

A number of employers have recently fallen victim to a phishing scam that tricks them into disclosing highly sensitive employee information to unknown third parties. Make sure to warn your Human Resources and Payroll Departments to be on the alert so that your company doesn’t get added to the ranks of those swindled.


The Latest Scam

In the wake of tax season, multiple businesses have reported receiving spoofing emails, usually sent to Payroll and Human Resources departments / personnel. The emails appear to be requests from in-house high-level company executives, including in some instances the CEO, requesting that employee W-2 tax forms be transmitted to them for various administrative purposes. In reality, these emails are phishing expeditions sent by outside data thieves, who use cloned company email addresses with authentic-looking company logos, colors, and signatures.


If the recipients are deceived into thinking the emails are legitimate company correspondence, they will comply with the request and end up delivering W-2 forms to the scam artists. These forms contain a treasure trove of employee personal data, including Social Security numbers and other personally identifiable information. The successful hackers often use the data obtained from this phishing scam to file fraudulent tax returns on behalf of company employees.


You May Have Been Hacked And Don’t Even Know It

The IRS has reported a 400% increase in phishing and computer malware incidents this tax-filing season, and many companies that have been compromised still don’t realize it. In the coming weeks, as your employees attempt to file tax returns, you may learn that they are unable to file because someone else has already submitted a tax return on their behalf. The source of this data breach may be your company.


What You Should Do

You should immediately warn your employees about the risks associated with this new scam. You should specifically train your Payroll, Human Resources, and any other group of employees with access to personal identifiable information to be on the lookout for these phishing attempts or other red flags, such as requests for information not typically requested, or requests from individuals with whom the employees do not typically directly communicate. You should also take active security steps to ensure that personal data is only transmitted using secure methods.


If you believe your company is a victim of this scam, you may have a legal obligation to follow applicable data breach notification requirements. Besides determining your legal responsibilities, which vary from state to state, you should consider encouraging your employees to monitor their credit reports and take all of the usual measures to prevent identity theft. You should also suggest they file their tax returns as soon as possible in an effort to avoid the filing of fraudulent tax returns on their behalf.

Expired Form I-9 Still in Effect

April 04 - Posted at 1:35 PM Tagged: , , ,

The current version of the Form I-9, the most fundamental tool used to determine if applicants are eligible to work in the U.S., expired on March 31. Until further notice, though, employers should keep using the expired form until the recently proposed “smart” I-9 is in effect, according to U.S. Citizenship and Immigration Services (USCIS).


Dave Basham, a senior analyst in the verification division at USCIS, has been answering the following question a lot recently: “What will happen on March 31, 2016, when the Form I-9 expires?” Basham says: “Employers should continue to use the current version of the form as it continues to be effective even after the OMB [Office of Management and Budget] control number expiration date March 31, 2016, has passed.”


On March 28, 2016, USCIS published a second round of proposed changes to the form in the Federal Register, giving the public 30 days to comment. Once the comment period ends April 27 and comments are considered, USCIS may make further changes before sending the proposal to OMB, which will need to review and approve it. The form will be available for download at www.uscis.gov upon being approved.


“Employers must continue to use the current version of Form I-9 until the proposed version is approved and posted on the USCIS website,” said Amy Peck, an immigration attorney in the Omaha, Neb., office of Jackson Lewis.


The proposed, revised form is designed to address frequent points of confusion that arise for both employees and employers.


The proposed changes specifically aim to help employers reduce technical errors for which they may be fined, and include:

  • Validations on certain fields to ensure information is entered correctly. The form will validate the correct number of digits for a Social Security number or an expiration date on an identity document, for example, Fay said.
  • Additional spaces to enter multiple preparers and translators.
  • Drop-down lists and calendars.
  • Embedded instructions for completing each field.
  • Buttons that will allow users to access the instructions electronically, print the form and clear the form to start over.
  • A dedicated area to enter additional information that employers are currently required to notate in the margins of the form.
  • A quick-response matrix barcode, or QR code, that generates once the form is printed that can be used to streamline audit processes.
  • The requirement that workers provide only other last names used in Section 1, rather than all other names used.
  • The removal of the requirement that immigrants authorized to work provide both their Form I-94 number and foreign passport information in Section 1.
  • Separating instructions from the form. Employers are still required to present the instructions to the employee completing the form, however.
  • The addition of a supplement in cases where more than one preparer or translator is used to complete Section 1.


The proposed changes will have far-reaching impact because all employers are required to complete and maintain the Form I-9 for each employee hired to verify their identity and authorization to work in the United States.

Can corporations shift targeted workers who have known high medical costs from the company health plan to public exchange (aka Marketplace/SHOP) based coverage created by the Affordable Care Act? Some employers are beginning to inquire about it and some consultants are advocating for it.

 

Health spending is driven largely by those patients with chronic illness, such as diabetes, or those who undergo expensive procedures such as an organ transplant. Since a large majority of big corporations are self-insured and many more smaller employers are beginning to research this as an option to help control their medical premiums, shifting even one high-cost member out of the company health plan could potentially save the employer hundreds of thousands of dollars a year by shifting the cost for the high-cost member claims to the Marketplace/SHOP plan(s).

 

It is unclear if the health law prohibits this type of action, which opens a door to the potential deterioration of employer-based medical coverage.

 

An employer “dumping strategy” can help promote the interests of both employers and employees by shifting health care expenses on to the public through the Marketplace.

 

It’s unclear how many companies, if any, have moved any of their sicker workers to exchange coverage yet, which just became available January 1, 2014, but even a few high-risk patients could add millions of dollars in claim costs to those Marketplace plans. The costs could be passed on to customers in the next year or two in the form of higher premiums and to taxpayers in the form of higher subsidy expenses.

 

A Possible Scenario

 

Here’s an example of how an employer “dumping-situation” it might work:

 

At renewal, an employer reduces the hospital/doctor network on their medical plan to make the company health plan unattractive to those with chronic illness or high cost medical claims. Or, the employer could raise the co-payments for drugs or physician visits needed by the chronically ill, also making the health plan unattractive and perhaps nudging high-cost workers to examine other options available to them.

 

At the same time, the employer offers to buy the targeted worker a high-benefit “platinum” plan in the Marketplace. The Marketplace/SHOP plan could cost $6,000 or more a year for an individual in premiums, but that’s still far less than the $300,000 a year in claim costs that a hemophilia patient might cost the company.

 

The employer could also give the worker a raise so they could buy the Marketplace/SHOP policy directly.

 

In the end, the employer saves money and the employee gets better coverage. And the Affordable Care Act marketplace plan, which is required to accept all applicants at a fixed price during open enrollment periods, takes over the costs for their chronic illness/condition.

 

Some consultants feel the concept sounds too easy to be true, but the ACA has set up the ability for employers and employees to voluntarily choose a better plan in the Individual Marketplace which could help save a significant amount of money for both.

 

Legal but ‘Gray’

 

The consensus among insurance and HR professionals is that even though the employer “dumping-strategy” is technically legal to date (as long as employees agree to the change and are not forced off the company medical plan), the action is still very gray. This is why many employers have decided this is not something they want to promote at this time.

 

Shifting high-risk workers out of employer medical plans is prohibited for other kinds of taxpayer-supported insurance. For example, it’s illegal to persuade an employee who is working and over 65 to drop company coverage and rely entirely on the government Medicare program. Similarly, employers who dumped high-cost patients into temporary high-risk pools established originally by the ACA health law are required to repay those workers’ claims back to the pools.

 

One would think there would be a similar type of provision under the Affordable Care Act for plans sold through the Marketplace portals, but there currently is not.

 

The act of moving high-cost workers to a Marketplace plan would not trigger penalties under ACA as long as an employer offers an affordable medical plan to all eligible employees that meets the requirements of minimum essential coverage, experts said.  If  workers are offered a medical plan by their employer that is affordable coverage and meets the minimum essential coverage requirements, workers cannot use tax credits to help pay for the Marketplace-plan premiums.

 

Many benefits experts say they are unaware of specific instances where employers are shifting high-cost workers to exchange plans and the spokespeople for AIDS United and the Hemophilia Federation of America, both advocating for patients with expensive, chronic conditions, said they didn’t know of any, either.

 

But employers are becoming increasingly interested in this option.

 

This practice, however, could raise concerns about discrimination and could cause decreased employee morale and even resentment among employees who are not offered a similar deal, which could end up causing the employer more headaches and even potential discrimination lawsuits.

 

Many believe that even though this strategy is currently an option for employers, in the end, it may not be a good idea. This type of strategy has to operate as an under-the-radar deal between the employer and targeted employee and these type of deals never work out. Most legal experts who focus on employee benefits do not recommend this strategy either as it just opens the door of discrimination claims from employees.

 

Please contact our office for assistance in reviewing all of the benefit options available to your company and employees under ACA.

Does your company currently use forms created more than three years ago that asks for information about an applicant or an employee’s family medical history?

 

Do your supervisors and managers know that if they are “friended” by an employee on a social media site and they see medical information relating to the individual or the individual’s family member, they have violated a federal law and subjected the company to liability?

 

Has your company failed to update Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), workers’ compensation, no-harassment, and other policies and procedures to comply with the Genetic Information Nondiscrimination Act (GINA)? 

 

If you answered yes to any of these questions,  you should review the impact of GINA so your company does not become the next GINA “headline.”

 

What Is GINA?

 

The Genetic Information Nondiscrimination Act (GINA) has been an active federal law for five years now. However, many employers still know little about the law. Enacted in 2008, GINA generally prohibits employers from engaging in three types of conduct:

 

  • Prohibits employers with 15 or more employees from discriminating against an employee on the basis of the employee’s genetic information. “Genetic information” is rather broadly defined and includes information from genetic tests, the genetic tests of family members, and family medical history, but it does not include an individual’s race and ethnicity.

 

  • Prohibits employers from requesting an employee’s genetic information, subject to certain exceptions.

 

  • Prohibits employers from retaliating against an employee who has opposed a practice made unlawful by GINA.

 

Most attribute GINA’s enactment and requirements as a response to a trend in which employers sought to rely on genetic information in an attempt to screen out potentially unhealthy employees to help control their surging health care costs. 

 

Inadvertent Collection Of Genetic Information

Many employers today pay little attention to GINA on the mistaken assumption that they do not collect genetic information. But there are three very common situations in which an employer can unknowingly collect genetic information.
 

 

First, employers regularly request medical documentation to support a potentially disabled employee’s request for a reasonable accommodation.
 

 

Second, employers regularly request medical documentation to support an employee’s request for leave under FMLA.
 

 

Third, many employers require a medical examination upon hire and, as a result, receive medical information in that context.

 

In each of these situations, the employer might acquire genetic information (without intentionally requesting it) and would violate GINA as a result of doing so. Fortunately, GINA provides a “safe harbor” that can protect an employer in such situations.  

 

How To Avoid Noncompliance

 

When an employer requests medical information, it must warn the provider not to provide genetic information. When the employer makes such a warning, the “safe harbor” provision provides that any receipt of genetic information in response to their request will be deemed unintentional and not in violation of GINA.
  

As a result, it is imperative that employers include this specific warning any time that they request health-related information from a health care provider or an employee.
  

Of course, an employer could also obtain genetic information in a less formal situation. For example, a supervisor could obtain genetic information about an employee during a casual conversation, through email, or through social media. As long as the supervisor does not ask follow-up questions and does not take any employment-related action based on the accidentally acquired info, this information would be deemed unintentional. However, the use or disclosure of the accidentally acquired information would still violate GINA.

 

Does Your Wellness Program Violate GINA?

 

The federal regulations also make clear that an employer does not violate GINA if the employer requests genetic information as part of a “voluntary wellness program.”

 

For such a program to be deemed voluntary, the employer must show that:

  • The employer does not require employees to provide genetic information (or penalize them for not providing it)

 

  • The employee provided knowing, voluntary, and written authorization stating that the employee understands the type of genetic information to be obtained and how it will be used. Individually identifiable genetic information may be provided only to the health care professionals involved in providing the services.

 

Another reason that employers may be less knowledgeable about GINA (as compared to other federal laws) is that relatively few lawsuits have be filed since the law was enacted. According to EEOC statistics, there were just 280 charges of GINA-related discrimination filed in 2012, or around 0.3% of the overall charge filings for that year. However, the number of filed, GINA-related charges has increased by nearly 40% since the first year an individual could file under the statute.

 

Moreover, recent activity by the EEOC suggests that it would be best if employers begin reviewing their procedures now and taking the necessary steps to ensure they are GINA compliant.

Unknowing or unintentional violations of GINA are perhaps the most worrisome type of violations since they are the most likely to occur. This is particularly true for employers that rely on dated, pre-GINA human resources documents (including employment applications) or employment policies.
  

Employers should update existing nondiscrimination and anti-harassment policies and handbooks so that discrimination/harassment on the basis of genetic information is clearly prohibited. Similarly, employers should also update their Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) forms to include the requisite “safe harbor” language that warns employees and health care providers not to provide genetic information.
 

Employers also should ensure that an employee’s medical information is maintained separately from the employee’s personnel file, as required by the law.

 

For further information on GINA and its impact on your business or for assistance on insuring your company is GINA compliant, please do not hesitate to contact our office. 

Workplace Valentine’s Day Woes

February 14 - Posted at 3:02 PM Tagged: , , , , , , , , ,

Imagine……

Every February a senior manager buys expensive jewelry and gives each women in his office one—on Valentine’s Day. The manager, who makes a lot of money, doesn’t consider the gift extravagant. He also doesn’t single anyone out, gifting the jewelry to all the women he works with, no matter their age or marital status. 


Is it an appropriate gesture? Or does is it an unwelcome romantic overture?

An attorney who looked into the gift giving (after one woman complained to HR) said the manager thought it was a nice present, and he didn’t have any romantic intentions toward any of these women. However, each individual woman only knew about the gift that she received and did not know that he gave it to other women as well. Some realized he was just an extravagant gift-giver, but it was clear that some were uncomfortable with his gesture.

No lawsuits resulted from this example, but the episode demonstrates that HR professionals need to communicate clear guidelines about employee behavior on Valentine’s Day.

Office-Romance Policies Stricter

The manager might have avoided complaints had his company spelled out what is and is not allowed—in terms of gifts, cards and romantic displays among co-workers.

A labor attorney recommends if the manager wanted to give gifts on Valentine’s Day that they should have been small gifts and he should have gave them to everyone, regardless of their gender. She added “When you give the gift to one specific gender, you risk not only women coming forward and saying they felt this was harassment, but you also risk a claim of gender discrimination. Men do file lawsuits saying they’re being discriminated against.”

Company policies about office romance are a lot stricter today than they were just a few years ago, according to a September 2013 survey of HR professionals by the Society for Human Resource Management (SHRM). The survey found that more than twice as many employers have written or verbal polices on office romances than did in 2005, even though the vast majority of respondents (67%) said the number of romances among employees has stayed the same over the past eight years.

Some employment experts discourage any Valentine’s Day card exchanges in the office. Another labor attorney recalled one instance of card-giving that led to a sexual harassment lawsuit: A manager gave a subordinate a card with a cartoon drawing of a person’s naked behind on the front.

“It wasn’t particularly romantic,” the attorney said, adding that the card might have been a thank-you gesture for the woman’s help on a project. “He thought it was cute, and he wanted to thank her, but it wasn’t the wisest move. The whole concept of gift-giving on Valentine’s Day has that romantic overlay. This is a romantic day, so you’re starting with the premise that any gift on this day may have broader meaning than, say, if it was given on the 4th of July.”

Couples in the Office

What about gift or card exchanges between married or dating couples in an office?

Although some employment experts discourage Valentine’s Day gifts delivered at work, gifts between office couples are appropriate as long as they’re in good taste. A bouquet of flowers delivered to the office is fine, however sexy lingerie probably is not.

Managers who date (or are married to) lower-level employees must be especially careful about Valentine’s Day demonstrations, even if they don’t directly supervise their significant other.

You can’t control what goes on outside the office, but, hopefully something in your company training informs employees that they need to be sensitive when they are in a personal relationship with a co-worker, because that may have an impact on the people around them. An extravagant gift that is given or delivered to work can result in an impression of favoritism in the workplace.

Forty percent of the SHRM survey respondents said employees complained about favoritism between co-workers in a romantic relationship. Such perceptions can damage workplace morale.

Plenty of companies forbid intimate relationships even when there are not supervisory concerns. About one-third of organizations prohibit romances between employees who report to the same supervisor or between an employee and a client or customer, according to a recent SHRM study. Almost one in 10 (11%) also don’t allow romances between their employees and those of competitor organizations. And more than one in 10 (12%) won’t even allow workers in different departments to pair up.

Respondents worry that office romances will lead to public displays of affection, inappropriate sharing of confidential company information between romantic partners, inappropriate gossiping among co-workers, less productivity from the couple and their colleagues, and damage to the organization’s image because the pairing may be seen as unprofessional.

What’s Appropriate

Managers who want to acknowledge the holiday could bring in a treat or gift cards to share with all employees in a department. Cookies, candy and cupcakes are easily shared and generally appreciated. Another idea would be to take the whole department out to lunch.

It’s important for HR managers to customize their office-romance policies based on what’s happened at the company in the past. You can customize the training to deal with facts that are prevalent in your workplace. If you have a lot of young single people who are dating or hooking up, your training will probably look different than a workplace with older married couples.

July 2013 Monthly Topic- Summer HR Tune Up

July 12 - Posted at 2:02 PM Tagged: , , , , , , , , , ,

Our topic for this month focuses on performing an HR Tune Up of current policies and procedures to ensure you are up-to-date and compliant.

 

 Areas covered include:

 

  • Conducting a Discipline & Discharge training for your management team
  • 7 Factors for “Just Cause”
  • Arbitration Agreements
  • Verifying Time Records
  • Comp Time
  • Changing Definition of Supervisors
  • NRLB Posting
  • ADAAA
  • FMLA

 

Contact us today for more information on this topic.

How Does the Fall of DOMA Impact FMLA and Other Employee Benefits?

June 28 - Posted at 3:59 PM Tagged: , , , , , , , , , , , , , , ,

On June 26, 2013, the US Supreme Court declared the Defense of Marriage Act (DOMA) as unconstitutional. DOMA had previously established the federal definition of marriage as a legal union only between one man and one woman. The extinction of DOMA already has HR departments thinking how this will impact the future of the Family and Medical Leave Act (FMLA) as well as other benefits.

 

How FMLA is Impacted

 

As we know, the FMLA allows otherwise eligible employees to take leave to care for a family member with a serious health condition. “Family member” includes the employee’s spouse, which, under the FMLA regulations, is defined as:

 

a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized. 29 C.F.R. 825.102

 

Initially, this seems to suggest that the DOL would look to state law to define “spouse”…but not so fast. According to a 1998 Department of Labor opinion letter, the DOL acknowledged that the FMLA was bound by DOMA’s definition that “spouse” could only be a person of the opposite sex who is a husband or wife. Thus, the DOL has taken the position that only DOMA’s definitions could be recognized for FMLA leave purposes. As a result, FMLA leave has not been made available to same-sex spouses.

 

That changes yesterday, at least in part.

 

What’s Clear about FMLA After the Ruling

 

In striking down a significant part of DOMA, the Supreme Court cleared the way for each state to decide its own definition of “spouse”. Thus, if an employee is married to a same-sex partner and lives in a state that recognizes same-sex marriage, the employee will be entitled to take FMLA leave to care for his/her spouse who is suffering from a serious health condition, for military caregiver leave, or to take leave for a qualifying exigency when a same-sex spouse is called to active duty in a foreign country while in the military.

 

What’s Unclear about FMLA After the Ruling

 

But what about employees who live in a state that does not recognize same-sex marriage? Are they entitled to FMLA leave to care for their spouses?

 

As an initial matter, the regulations look to the employee’s “place of domicile” (aka state of primary residence) to determine whether a person is a spouse for purposes of FMLA. Therefore, even if the employee formerly lived or was married in a state that recognized the same-sex marriage, he/she is unlikely to be considered a spouse in the “new” state for purposes of FMLA if the state does not recognize the marriage.  This is no small issue, since 30+ states currently do not recognize same-sex marriage and some don’t go all the way (e.g. Illinois, which recognizes same-sex unions, not marriages).

 

Surely, some might argue that the U.S. Constitution requires other states to recognize the marriage; however, this issue is far from settled. Clearly employers need some help from the DOL. It is speculated that the DOL may draft regulations on how employers can administer FMLA in situations where the employee’s spouse is not recognized under state law. This would give life to concepts such as a “State of Celebration” rule, in which a spousal status is determined based on the law of the State where the employee was married and not where they reside. However, without more guidance, it is still too early to tell how the DOL will handle this.

 

Other Key Benefits Affected by the DOMA Decision

 

FMLA is not the only federal law impacted by the fall of DOMA. If federal regulations follow through, some of the notable federal laws and benefits impacted may include:

 

  • Taxes: Same-sex spouses likely will share many federal benefits and be able to manage tax liability in a way that opposite sex spouses typically do. For instance, an inheritance, which was taxed under DOMA, will no longer be taxed for a same sex spouse. Income taxes, payroll taxes, health insurance benefits, and tax reporting may also be impacted.

 

 

  • Affordable Care Act and COBRASome outlets are reporting that the Court’s decision will impact how the Affordable Care Act (alsoreferred to as Obamacare) is carried out, though many details remain unclear. Moreover, same-sex spouses may be eligible for continuation of health insurance benefits (COBRA) even though the spouse may lose his/her job.

 

 

  • Employee benefits: Same-sex spouses likely will be treated equally when it comes to employee benefits, including a 401(k) plan.

 

 

  • Social security benefits: The Court’s decision also paves the way for social security survivor benefits to continue onto a legally married same-sex partner.

 

  • Citizenship: According to NBC News, some 28,000 same-sex spouses who are American citizens will now be able to sponsor their non-citizen spouses for U.S. visas and can qualify for immigration measures toward citizenship.
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