1. law, govt and politics

MONTHLY NEWS
April 2015 Client Newsletter
What’s in This Issue:
Employee Engagement in the Millennial Age
HR
✦
Termination Precautions
✦
Fake I-9s??
✦
Investigation Basics
✦
Handgun Protections
✦
Pregnancy Discrimination
✦
Pop Quiz!
Benefits
✦
6055 Reporting
✦
Dependents Age
✦
Wellness Tip
✦
401k Webinar
Compliance
✦
✦
✦
Federal Updates
✦
NLRB Handbook Memo
✦
“Quickie” Election
✦
OFCCP Election
State-by-State Compliance
✦
California Family Act
✦
Utah
✦
Massachusetts
Events and More
✦
This year, Millennials are expected to surpass Baby Boomers as the country’s largest
living population. Millennials have been the cause of much buzz—particularly as
employers compete for the best talent to represent the future of their business. Deloitte
found that by 2025, 75% of the global workforce will be made up of millenials. You’ve
heard some of the claims: “Millennials bounce from job to job. They don’t want to stay in
one place for more than two years.” “This generation doesn’t care about money.”!
While these
statements are
extreme examples
and exaggerate
Millennial values,
there’s no getting
around the fact
that Millennial
employees do
prioritize different
benefits than their
Baby Boomer
counterparts.!
So how does an
employer remain competitive, attract Millennial talent and engage its current
Millennial workforce?!
1. Deliver and Encourage Opportunities Outside the Company but within the Industry. Enable
them to contribute to their field. Go beyond your bottom line such as general association
memberships and participation.!
2. Digital Natives Want Mobile and Digital Options. Go mobile to reach them with the
technology they grew up with. Mobile apps are designed to push information to employees
through the technology they are comfortable with.!
3. Provide More Flexibility. A study by PwC found that two thirds of millennials would like to
have the flexibility to work from home (64%) and the ability to shift work hours (66%).!
4. Streamline the Information Experience. Millenials are expected to multi-task and employers
need to organize information so that they can do so as easily as possible. Make it accessible.!
Upcoming Webinars
✦
Interactive Process
✦
Social Media
Resourcing Edge Newsletter
5. Create a Culture of Transparency from Leadership Down. For millenials, its not just about
finding a company that provides a paycheck. Rather, it’s about believing in the company they
work for, its mission and its leaders. Companies should come up with creative ways to
showcase who these people are, what their mission is and plan for future.!
1
HUMAN RESOURCES
WAIT! Don’t Terminate! At least not until you’ve read this.
If you’re like most managers, terminating an
employee is one of your least favorite duties.
Unfortunately, we can’t make it a pleasant experience
for you, but we can provide you with basic questions
to ask yourself that will help you reduce the
likelihood of a post-termination claim and hopefully
make the painful process of terminating an employee,
a little less painful.!
!
5 Questions to Ask Yourself Before
Terminating an Employee!
!
1) Before deciding to terminate the employee, did I
document prior conversations I had with this
employee regarding his/her performance?!
You should have already conducted at least one
disciplinary meeting and given the employee an opportunity to correct/improve their conduct. During the disciplinary
meeting you should have identified the problem, rule or policy violation, and what the company’s expectation is
regarding any of these issues. The employee and manager should have a clear picture of what happened in the past
and what is expected going forward. Document the overall purpose of the meeting and any performance improvement
plan or statement signed by the employee. If an employee does something particularly egregious, like violence or
stealing, then we recommend skipping the disciplinary meeting and proceeding with termination.!
!
2) Does the employee have any “red-flags” that I should worry about?!
A red flag is anything that makes terminating the employee especially risky. For example, did the employee recently
return from a medical leave of absence? Is the employee a member of a minority group? Has the employee filed a
workers’ compensation claim? If you find a red flag, it doesn’t mean that you can’t fire the employee, but it certainly
makes it much more risky for the company. In these situations, consult an employment attorney.!
!
3) Do I have all the required paperwork prepared?!
You will need to make sure that all the required paperwork, forms, etc. are completed and ready for the termination
meeting. Depending on the laws of your state, you may need to have a final paycheck ready to provide to the
employee at the time of termination. You will also likely need to give the employee a change in relationship form, any
unemployment forms, COBRA/HIPPA notices – just to name a few.!
!
4) Am I prepared for the termination meeting?!
Make sure that you have thought about where the meeting will take place and what you will say to the employee. Try
to find a place where the employee can process the information privately. You do not want to make a spectacle out of
the situation. Make a written outline of the points you want to make sure to communicate during the meeting. Chances
are you will be nervous and thus more likely to forget to cover all of your points unless you write them down. Your
written outline can also help you if you need to summarize the termination meeting at a later date.!
!
5) Do I have an exit strategy for the employee?!
After the termination meeting, the employee will need to gather their belongings, return all company property (e.g.
keys, laptops) and physically leave the worksite. Be prepared. Have a box ready for the employee to use. Make sure
that you have a list of the company property provided to the employee. The last thing you want is for the now
terminated employee to loiter around the worksite while you gather paperwork or a box.!
Resourcing Edge Newsletter
2
HUMAN RESOURCES
Swapping Out Fake I-9s For The Real Deal
What happens when your employee says her I-9 immigration
documents were fakes—and now she has real ones? This happens with
some frequency, and as Deferred Action becomes more prevalent, it will
likely occur even more. A Deferred Action is administrative relief from
deportation. According to a recent letter from the U.S. Department of
Justice's Office of Special Counsel for Immigration-Related Unfair
Employment Practices, termination of employment is not required.
Instead, the employer should complete the new I-9, write the original
hire date in Section 2 and attach the new I-9 to the previous one
submitted by the employee. "So long as the employer does not reject
valid work authorization documentation or terminate employees because of their citizenship, the employer is not likely
to be violating the federal anti-discrimination laws," Whitehill says.!
!
!
Investigation Basics
Investigating a workplace complaint can be a daunting task
for a manager or HR professional. Below we have created a
list of basic information that will help you conduct a prompt
and fair investigation.!
!
1)
Choose an investigator. The investigator should be
neutral and objective. Make sure that the individual is
trained and has adequate time to devote to the
investigation.!
2) Review relevant documents and policies. Review
company policies and procedures relating to the alleged
event. Note and review any prior complaints and business
records (e.g. videotapes, photographs, etc.).!
3) Talk with the complainant and obtain a written statement. As soon as possible, speak with the complaining party and
ask for a written statement. You must explain to the employee that the company is obligated to investigate all complaints,
regardless of whether the complainant wants the matter investigated. Ask for names of any witnesses.!
4) Evaluate the need to separate the parties. You may need to immediately separate the parties. If you need to separate the
parties, do not alter the terms and conditions of the complaining employee’s job (e.g., location, schedule, job duties).!
5) Interview the accused. Tell the accused employee what they are being accused of doing. Give them the opportunity to
respond. Take detailed notes and ask the accused to read the notes and verify the accuracy.!
6) Interview other witnesses. Interview other employees who may have witnessed the incident. Document the details of the
witness interviews.!
7) Prepare an investigation report. The report should detail the chronology of the events, who was interviewed, all relevant
documents, and a summary of the investigation, including the resolution.!
8) Reach a conclusion. Do not speculate. Use the facts and circumstances you have gleaned from the investigation to
support your conclusion.!
9) Convey the decision to the parties. Meet separately with the accuser and the accused and tell them your conclusion.!
10) Ensure there is no retaliation. Warn the harasser not to retaliate against the complainant. And, tell the complainant that if
they feel retaliated against in any way, they need to let you know immediately.!
11) Prepare a summary report. Prepare a summary report which will be attached to your notes in a confidential file.
Resourcing Edge Newsletter
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HUMAN RESOURCES
Handgun Owner Protection
On March 23, 2015, members in both houses of the Tennessee General Assembly voted
overwhelmingly to pass new employment protections for handgun owners. The bill creates a
private right of action for any employee who is terminated solely for storing a firearm or
ammunition in the employee's vehicle while in the employer's parking lot.!
!
Employers should note that the new protection extends to any adverse employment actions such
as discipline, demotion, and/or cuts in pay or status. However, the bill has some important
limitations that employers should note. !
1st: The proposed law does not protect handgun owners as a class. Rather, to obtain the law's
protection, the employee must show that he/she is a handgun-carry permit holder and that he/she
was properly storing the firearm and/or ammunition as required by law. !
!
2nd: To prevail on a claim under the proposed
law, an employee must show that his/her exercise
of the right to transport and store firearms and
ammunition was the sole cause for the adverse
employment action. This is a heavy burden.!
3rd: It is important to note that despite its
employment protections, the proposed law
specifically reserves the employer's right to
prohibit firearms and ammunition from being
carried on the employer's premises except when
stored in areas consistent with the law. The
proposed law gives aggrieved employees the right
to sue for relief and economic damages as well as
for reasonable attorney fees and costs. Actions
under the proposed law must be brought within a
year of the adverse employment action and must be filed in the circuit or chancery court of the county
where the alleged violation occurred.!
!
If enacted, the proposed law would create yet another consideration for employers when making
tough decisions with regard to discipline and termination of employees. Employers should inform
their frontline supervisors and managers of the new law and provide training regarding appropriate
considerations when making employment-related decisions. Conduct a thorough investigation of the
Every company has one, a
difficult employee to deal
with. They are late,
insubordinate, poor
performers, and well...just
bad! !
!
To add insult to injury, you
attempt to discipline this
employee by writing her up.
During your discussion, the
employee exclaims, “I’m not
signing that, it’s not true and
I don’t agree with it!” How
should you handle this
issue?!
!
A. You stop the meeting and
shred the write up. What’s
the point, she won’t sign it.!
B. Terminate the employee
for not signing the write up.
That’s insubordination.!
C. Write in “Refused to Sign”
and the date on the
employee signature line. The
disciplinary action is valid
and in force.!
!
ANSWER ON LAST
PAGE!
U.S. Supreme Court Rules on Pregnancy
Discrimination Act
The U.S. Supreme Court recently established the standard an employee must
meet to state a discrimination claim under the Pregnancy Discrimination Act
(PDA). To establish a claim, an employee must show”: (1) She is pregnant
with restrictions; (2) She sought accommodation; (3) The employer did not
accommodate her; and (4) The employer did accommodate others "similar in
their ability or inability to work." If the employer can then support a refusal to
accommodate by relying on a "legitimate, non-discriminatory reason,"
differentiating other employees from the pregnant one, the court explained
that the employee could still "reach a jury" by providing evidence that the
employer's policies impose a significant burden on pregnant workers, and that
the stated "legitimate, non-discriminatory" reasons are not strong enough to
justify that burden.” For more information on this process, please send an
email to [email protected].!
Resourcing Edge Newsletter
4
BENEFITS
6055 Reporting Update: April Member Mailings to Collect SSNs
Applies to insured groups and off-Marketplace retail members.!
As we reported two weeks ago, the Affordable Care Act (ACA) requires us to provide Tax Identification Numbers
(TINs) for all of our off-Marketplace retail and insured group members to the Internal Revenue Service (IRS). A TIN is an
identification number used by the IRS, most commonly a Social Security number (SSN). Renewing insured group
members and off-Marketplace retail members who haven’t provided SSNs for everyone on their policy will get a letter
asking them to provide us with any missing SSNs.!
!
Update: This mailing has been rescheduled from March to April. The letter asks members to provide SSNs in one of
three ways:!
! •! Send a secure email via Blue Access for MembersSM. This is the preferred method for members to provide the
information.!
! •! Fill out a form included with the letter and send it back to us!
! •! Call the customer service number on the back of their member ID card.!
!
Update: Employers Can Help with this Process
Employers can help by reminding their employees to provide missing SSNs, and by sending updated membership files
through their usual process (Blue Access for EmployersSM, membership specialist or AEP).!
Blue Cross and Blue Shield of Texas will also ask members to provide SSNs during routine inbound calls if they don’t
already have them on file. SSN requests will be sent to new group members (and new hires in an existing group) later
this year. More details will be provided in an upcoming article.!
!
Dependents Termination Age and What’s Next For Them
According to the Employer Mandate (does not apply to groups under 50 employees),
children can be covered under their parents’ medical insurance until the month they turn
26 years old. Coverage will terminate at the end of the month in which the dependent
turns 26. The dependent can then elect COBRA for 18 months or obtain a policy through
the Health Exchange or the marketplace within 31 days of their loss of coverage. !
Reminder:
Special 401k
Webinar
APRIL WELLNESS TIP:
On July 23, 2015 at 2:00
CST our 401k
specialists,
Transamerica, LPL
Financial and Lone Star
TPA will feature a
webinar to offer insight
on how having a 401k
can earn employers tax
credits! We will send
out reminders and
invitations in the
coming months! You
will not want to miss!!
How To Reduce Stress
Stress is a response brought about by change and it may include
physical and mental tension. Many daily life occurrences can cause
tension, including work pressures, financial worries and relationship
problems. Muscle tension, headaches and illness can often be
attributed to stress.!
!
There are easy and enjoyable ways to minimize stress. Some ways
include:!
• Pursuing a hobby!
• Using daily relaxation techniques (deep/rhythmic breathing,
stretching or meditation)!
• Becoming involved in a social or activity group that meets regularly!
• Finding someone to listen to you or writing down what you feel!
These tips are intended as general information only. Please consult your
physician for specific advice.!
Resourcing Edge Newsletter
!
!
5
LEGAL COMPLIANCE
Federal and State Updates
NLRB Memorandum on Handbooks May Scare You!
The Office of the General Counsel for the National Labor Relations Board (NLRB) issued a 30 page memorandum outlining the
NLRB’s position on certain handbook policies. !
!
NLRB Memorandum!
The memorandum focuses on the effect certain policies may have on employees’
Section 7 rights under the National Labor Relations Act (NLRA). Section 7 provides
employees (both union and non-union) with the right to discuss wages, hours, and
other terms and conditions of employment with fellow employees and nonemployees.!
The memorandum confirms that the NLRB’s application of employees’ Section 7
rights is far reaching. In evaluating whether a particular policy violates Section 7,
the NLRB will determine whether “employees would reasonably construe” the
policy or rule as violating Section 7.!
!
Memorandum Highlights !
Policies Identified as Unlawful:!
• Do not discuss ‘customer or employee information’ outside or work, including ‘phone numbers [and] addresses.!
• Never publish or disclose or report on conversations that are meant to be private or internal to the Company.!
• Discuss work matters only with other Company employees who have a specific business reason to know or have access to such
information.!
• Be respectful to the company, other employees, customers, partners, and competitors.!
• Chronic resistance to proper work-related orders or discipline, even though not overt insubordination, will result in discipline.!
!
This list is a mere example of the many “unlawful” policies identified in the memorandum. Employers should read the
memorandum and carefully review their employee handbooks.!
!
NLRB “Quickie” Election Rules – Effective April 14, 2015
Although the National Labor Relation Board’s quickie election rules are being
challenged in court, it is unlikely that the litigation will be resolved before the April
14, 2015 effective date. Therefore, employers need to understand the rule and
assume that the effective day will remain unchanged. In short, the quickie election
rule will reduce the amount of time from notice to election to somewhere in the 21-24
day range. That doesn’t give employers much time to prepare a response.!
!
Employers will also be required to disclose both phone numbers and email
addresses within two days of election agreements. Additionally, employees are now
able to use employer email to organize.!
!
!
OFCCP’S FINAL RULE TAKES EFFECT APRIL 8, 2015
Executive Order 13672 prohibiting federal contractors from discriminating on the basis of
sexual orientation and gender identity takes effect April 8, 2015. The EO applies only to federal
contractors.
Resourcing Edge Newsletter
6
LEGAL COMPLIANCE
California Family Rights Act: BIG Changes Take Effect July 1, 2015
New and significant changes to California’s Family Rights Act (CFRA) take effect on July 1, 2015. The amendments change
several provisions in the CFRA, especially in the areas of interference and retaliation.!
•
Covered Employer: Amends the definition of “covered employer” to include successors in interest of a covered
employer and joint employers. The new regulations do not provide any criteria for
determining whether a joint employer relationship exists; rather, the relationship “is
to be viewed in its totality based on the economic realities of the situation.”!
•
Other Definitions: Amends the definitions of serious health condition, inpatient care,
eligible employee, and spouse to include same-sex marriages and domestic partners.!
•
Key Employee: Extensively revises the provisions regarding the identity of key
employees and their reinstatement rights.!
•
Eligibility for Leave: Details how to determine eligibility for leave, including
establishing the leave year, determining an employee’s worksite if the employee
works remotely or is jointly employed, and addressing breaks in service.!
•
Fraudulent Use of Leave: Denies job restoration and maintenance of health benefits
to employees who fraudulently obtain or use CFRA leave. The employer has the
burden of proving that an employee committed the fraudulent conduct.!
•
Calculating Leave Entitlement: Details how to calculate leave where the employee has part-time or other alternative
schedules or cannot work overtime. Describes how to account for holidays during leave and how to manage situations
where it is physically impossible for an employee using intermittent or reduced work schedule leave to begin or end
work midway through a shift, such as where a flight attendant or railroad worker is scheduled to work on a plane or
train.!
•
Notice of Need for Leave: Addresses situations where an employee’s request for CFRA leave is not clear. The employee
has an obligation to respond to an employer’s questions, and the failure to respond may result in denial of CFRA
protection if the employer is unable to determine whether the leave is CFRA-qualifying.!
•
Substitution of Paid Leave for Unpaid Leave: Details permitted substitutions of PTO or other benefits for unpaid leave.!
•
Job Restoration: Requires the employer to engage an employee in the interactive process to determine whether an
extension of leave would constitute a reasonable accommodation where the employee has a serious health condition that
also constitutes a disability under the California Fair Employment and Housing Act (FEHA) and cannot return to work
at the conclusion of his or her CFRA leave.!
•
Group Health Coverage: Expands provisions on continuation of coverage and payment of premiums during leave.!
•
Fitness-for-Duty/Return-to-Work: Clarifies an employer’s ability to seek such information.!
•
Certification Requirements: Amends requirements regarding medical certifications, including penalties for failing to
provide a certification. Revises the sample Certification of Health Care Provider form to include safe harbor language of
the California Genetic Information Nondiscrimination Act of 2011 (CalGINA), and clarifies authentication and second
opinion processes.!
•
Posting: Permits electronic posting of CFRA notices and requires employers to translate the CFRA notice into every
language spoken by at least 10 percent of its workforce.
Resourcing Edge Newsletter
7
LEGAL COMPLIANCE
Tacoma Employers Must Provide Paid Leave Starting February 2016
Apparently Tacoma has passed on ordinance requiring employers (all employers with 1 or more employees) to provide
one hour of paid leave for every forty hours worked (for up to 24 hours) to take care of the employee's own illness or
injury to care for a family member.!
!
CALIFORNIA: Ninth Circuit: Service Advisors Don’t Qualify For Dealership Exemption
On March 24th the Ninth Circuit Court of Appeals in California adopted the U.S. Department of Labor’s 2011 interpretive
regulations about the dealership exemption to hold that service advisors do not qualify as “salesmen, partsmen, or
mechanics engaged in the selling or servicing of automobiles.” Typically, a service
advisor’s position at a car dealership involves selling services, not cars. In
California, service advisors are usually classified as exempt employees and do not
receive overtime pay.!
!
In Navarro v. Encino Motorcars, LLC. Plaintiffs, a group of service advisors, sued
claiming that they were incorrectly classified as exempt employees and should
have received overtime pay. The lower court dismissed their overtime claims on
the ground that, as service advisors, they fell within the FLSA’s exemption for
dealership salesmen.!
!
The 9th Circuit reversed the decision relying on the DOL’s regulatory definitions
of salesman, partsmen, and mechanic, which limit the dealership exemption to
salesmen who sell vehicles and partsmen and mechanics who
service vehicles. Because service advisors neither sell vehicles nor
service them, but sell services, the court concluded they are not
exempt from the FLSA’s overtime requirements.!
!
MASSACHUTSETTS: Parental Leave Law Took
Effect on April 7th
On April 7, 2015, the Massachusetts Maternity Leave Law
officially becomes the Massachusetts Parental Leave Law. The
change expands the leave rights to both parents, not just mothers. !
!
UTAH: Bans Discrimination Against Nursing
Mothers
Employers are prohibited from discriminating against employees
who choose to breastfeed at work. The new law, signed on March 23, 2015, takes effect on May 12, 2015.!
!
UTAH: Sexual Orientation/Gender Identity Discrimination Unlawful
On March 12, 2015, the Utah Antidiscrimination Act was amended. The new amendment prohibits employment
discrimination on the basis of an individual’s sexual orientation and gender identity.!
The law adds sexual orientation and gender identity as prohibited bases for discrimination in employment and requires
employers to adopt rules and policies that permit employees to dress and utilize sex-specific facilities consistent with
their gender identify.!
Resourcing Edge Newsletter
8
EVENTS AND MORE
UPCOMING WEBINARS!
POP QUIZ ANSWER: C!
Understanding the Interactive Process !
This a common occurrence, especially
with difficult employees who have no
intention of adhering to your policies.
They think they have found a loophole
that keeps you from disciplining them.
Not true. Make sure you write “Refused
to Sign”, date the document, and give
the employee a copy. Take notes of the
meeting and whether the employee
refused to sign and why. Include
statements made by the employee. It is
advised to have a witness, usually
another manager, attend the disciplinary
meeting to corroborate your account of
the facts. If the employee claims they
never received the disciplinary action,
you can confidently testify that it was
delivered, along with a witness
statement, and a copy of the disciplinary
action.!
April 23rd, 2015 @ 10:30 AM PT / 11:30
AM MT / 12:30 PM CT / 1:30 PM ET!
Under the Americans with Disabilities Act (ADA) employers are required to engage
in the interactive process every time an employee needs a reasonable
accommodation and regardless of whether or not the employer believes a reasonable
accommodation is possible. Be sure you understand what regulatory agencies expect
from employers during the interactive process.!
!
!
Reduce your risk and join us for this webinar, covering:!
!
!
!
!
!
•!
•!
•!
•!
Overview of the ADA!
Interactive process do's and don'ts!
Interaction with FMLA and other required leaves of absence!
Practical exercises designed to
teach the interactive process!
Who should attend:!
In-house counsel, managers, supervisors,
and HR professionals!
!
Webinars are pre-approved for 1
hour of HRCI credit.!
!
!
Contact Info
Main Office: 214-771-4411
General Inquiries
[email protected]!
Payroll [email protected]!
Register at http://resourcingedge.com/human-resources/webinarschedule.html !
Event ID: 1013 Event Passcode: 9870!
Navigating Social Media in the Workplace!
May 28, 2015 @ 2:00 PM CDT!
In this webinar Resourcing Edge will highlight challenges and risks employers face
with respect to social media including harassment, confidential information and the
application of the National Labor Relations Act’s protections to employees. Attendees will understand the different types of social media, know what they can
prohibit employees from doing during work hours and understand the importance
of having social media policies and how they impact terminations.!
Human Resources/Background & Drug
Screens - [email protected]!
Benefits Questions
[email protected]!
Workers' Comp and Certificates
[email protected] !
Accounting Issues
[email protected] !
Tax Questions [email protected]!
Colorado Office: 719-260-7570
!
!
Register for this website also on the HR page of our website.!
And more:!
June 18 – Unemployment!
July 23- 401K Assistance!
Resourcing Edge Newsletter
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