Everything employers need to know about employee job classifications
FLSA job classifications can confuse even the most experienced HR managers. Continue reading this blog post for everything employers should know about employee job classifications.
Chief among the issues that keep employers up at night is staying compliant with federal and state employment laws.
Arguably, wage and hour rules are the most complex and cause the most issues for companies. Job classifications under the FLSA can confuse even the most experienced HR managers.
In fact, some of the costliest wage and hour lawsuits and penalties on record could have been avoided if only the employer properly classified an employee as either exempt or nonexempt. It’s critically important to understand the law — and the devil is in the details.
Exempt or nonexempt?
Most employers understand that an exempt employee is not entitled to receive overtime pay for hours worked in excess of forty hours per week, according to the provisions of the FLSA. Conversely, nonexempt employees are required to receive overtime pay and should be classified as nonexempt from these same overtime provisions.
While it may sound straightforward, figuring out an employee’s exempt status is not that simple. Different types of exemptions exist and each has its own unique set of requirements that are outlined in the FLSA. Most of these exemptions are specific to certain jobs or industries, for example, some exemptions only apply to specific types of agricultural workers, or to truck drivers who transport goods in interstate commerce. But for most businesses, exempt employees will usually fall into one of the following three exemption categories: executive, administrative and professional. Collectively, these are referred to as the white collar exemptions.
A common error that employers make is to classify all their salaried employees, or all employees with the word manager in their title, as exempt. Neither of these factors alone is enough to make the exempt designation. Each of the white-collar exemptions has two components: a salary requirement and a duties requirement. The salary requirement is the same for each of the three exemptions, but the duties requirements are different.
The salary basis test
For any employee to be considered exempt under any of the white-collar exemptions, they must be paid on a salary basis. This means that any employee who is paid by the hour, per day, or is commission-only, regardless of their title or position, will not meet the criteria for any of the white-collar exemptions. How the salary is paid as well as the amount are also subject to certain restrictions. The salary basis test determines the minimum amount, which is subject to change from time to time. The minimum salary is currently $455.00 per week (or $23,660 per year). This test also provides restrictions on when and how an employer can make deductions from an exempt employee’s salary.
An increase to the minimum salary per week from $455 to $913 (or $47,476 per year) was originally scheduled to go into effect back in December 2016, but industry groups against the measure successfully lobbied to block it. The U.S. Department of Labor is exploring alternatives that could appease these industry groups while keeping the regulations in line with the times. The DOL is scheduled to re-start the rulemaking process in March 2019, and prior statements of the current DOL Secretary, Alexander Acosta, suggest that the new rule may propose a more modest salary increase to around $634 per week (or around $33,000 per year).
Job duties
In addition to the salary, each white-collar exemption has its own unique set of duties requirements. Employers must look at the actual duties that each employee performs to determine whether they meet the criteria and their title or position does little to influence the outcome. So, simply naming an employee a manager does not automatically qualify the worker as an exempt employee. To be considered exempt under the executive exemption, which is the most common exemption for managers, this employee would need to supervise two or more full-time employees (or the equivalent) and have the authority to hire and fire employees. Otherwise, they would need to meet the requirements for one of the other exemptions to be paid in this manner.
Knowing that these regulations exist and being well-informed of the framework is the first step in understanding overtime obligations – and reducing wage and hour worries. Employers should seek a qualified employment law attorney for additional guidance on the specifics of each requirement to ensure compliance with applicable overtime laws.
SOURCE: Starkman, J.; Nadal, A. (15 February 2019) "Everything employers need to know about employee job classifications" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/what-employers-need-to-know-about-job-classifications?brief=00000152-14a5-d1cc-a5fa-7cff48fe0001
LinkedIn’s job search feature gets smart
LinkedIn is planning on simplifying their process of finding and hiring talent via their recruitment features. The platform plans on consolidating their LinkedIn Recruiter, Jobs and Pipeline Builder products into one service. Continue reading to learn more.
LinkedIn plans to simplify the process of finding and hiring talent through upgraded recruitment features this summer.
The career platform will consolidate its LinkedIn Recruiter, Jobs and Pipeline Builder products into one service — the Intelligent Hiring Experience — to streamline the recruitment process for its corporate customers. Artificial intelligence algorithms will help talent recruiters find the most suitable candidates for open positions.
“[The] update is about how we can make those tools work even better by fostering collaboration and more efficient sourcing,” says John Jersin, vice president of Product for LinkedIn Talent Solutions and Careers. “We’ve started along this path by bringing more intelligence into our platforms, to ensure our products are working together optimally, and helping both companies and job seekers more easily zero in on the best opportunities.”
With the upgrade, messages between recruiters and potential talent can be shared with HR professionals and hiring managers. The platform also allows the recruiter and corporate hiring team to exchange notes on each job candidate. Recruiters who rely on LinkedIn to discover talent are optimistic the upgrades will make the hiring process more organized.
“I think that would be a great feature,” says Aimee Aurol, talent acquisition specialist for Acuris Group, a media company. “Hiring managers can get a better idea of what I’m doing as a recruiter, and I can see which candidates are moving along in the process.”
Aurol says LinkedIn is her primary tool for identifying and contacting candidates for her company. While the majority of her job placements come from LinkedIn, she says the platform’s candidate suggestions could use improvement. At its current state, Aurol’s candidate searches often turn up the same candidates over and over. But she hopes the updated AI will direct her to a wider variety of available talent.
And Jersin says it was designed to do just that.
“All of these tools are created to help learn your interests and surface the right candidates,” he says. “When a recruiter reaches out to a specific candidate, or a job seeker applies for a role, our AI algorithms take note, matching profiles with job descriptions and highlighting top recommendations.”
LinkedIn’s AI will also take into consideration whether previously suggested candidates were hired or not as it adjusts its personalized algorithm. To help the algorithm learn your company’s preferences, Jersin recommends setting up projects for each available role. Then, go through suggested candidates and save the ones you want to contact — and hide the ones that don’t fit.
Once a candidate is hired, the upgrades allow hiring managers to send rejection letters individually, or in mass. This part of the upgrade was designed to improve the hiring experience for both job applicants and employers.
“We believe applicants will appreciate knowing the outcome of their contact with your company — and it's bad business to leave applicants hanging,” Jersin says. “…one survey showed that over 40% of candidates said that if they don’t hear back from a company they’ll never apply to it again.”
While the upgrades are scheduled to debut in late summer, Jersin says LinkedIn will slowly introduce the new features over the next couple of months. The feature will be included in LinkedIn’s Recruitment and Job Slots membership packages; existing customers will not have to pay additional fees to access the service.
“The new features will make it simple for recruiters to simply keep doing their sourcing and hiring while inadvertently training our algorithms to learn more about their preferences,” Jersin says.
SOURCE: Webster, K. (20 February 2019) "LinkedIn’s job search feature gets smart" (Web Blog Post). Retrieved from https://www.benefitnews.com/news/linkedin-introduces-intelligent-hiring-experience-platform?brief=00000152-14a7-d1cc-a5fa-7cffccf00000
How employers can take advantage of the best-kept wellness secret
How can you take advantage of insurance companies’ best-kept secret? Some insurance carries pay wellness dollars to companies who implement wellness programs. Read on to learn more.
Did you know some insurance carriers pay companies to implement wellness programs? It’s called wellness dollars, and it is insurance companies’ best-kept secret.
Wellness dollars are a percentage of a company’s premiums that can be used to cover wellness-related purchases. The healthier employees are, the fewer dollars insurance carriers need to pay out for a policy. Many insurers have incentives like wellness dollars for employers to improve the well-being of their workers.
The benefits of adding a wellness program are plenty. These programs typically generate a positive return on investment for companies. Research done by three Harvard professors found that overall medical costs decline $3.27 for every dollar spent on wellness programs. Costs from absenteeism fall about $2.73 for each dollar. Well-designed programs can improve employees’ overall wellbeing and life satisfaction, according to a report from the U.S. Chamber of Commerce.
It’s a new year, and group health insurance plans are starting fresh. Here’s how employers can take advantage of wellness dollars.
Get in touch with your carrier. The first step is to get in touch with your insurance carrier to find out if your self-insured or fully-insured plan covers participatory or health-contingent programs. If you don’t have wellness dollars, it’s still early in the year, and it’s worth negotiating to see if you can include them in your company’s current package.
You will work with your insurance carrier to determine how your wellness dollars can be spent, based on an agreed-upon contract. The amount of wellness dollars that you receive depends on the number of employees and profitability.
Every company is different, so the range of services varies and could include wellness programs, gym memberships, nutrition programs, massages and more. Sometimes incentives for wellness activities can be used; sometimes it can’t. Ask your carrier for a complete list of covered expenses. This will help you as you shop around to find the right offerings. Save receipts and records for reimbursements.
Determine the best use. There are a few ways to determine what offerings you should use for your company. Before making any decisions, ask your employees and the leadership team what type of program they would be most likely to engage in. Gallup named the five elements that affect business outcomes: purpose, social, community, physical and financial. Look for a comprehensive program that includes these five elements, instead of coordinating with multiple vendors. If only a portion of your expenses will be reimbursed, it’s still worth getting a wellness program. They have cost-savings on an individual and team level.
Wellness programs are all about building culture, and with unemployment at a record low, it’s a sticking point to keep employees invested in your company. A few examples of wellness offerings include fitness classes, preventive screenings, on-site yoga, financial wellness workshops, healthy living educational workshops, and health tracking apps.
Once you’ve implemented wellness offerings in your workplace, keep track of your company’s progress. Create a wellness task force, a healthy workplace social group, or conduct monthly survey check-ins to make sure employees are staying engaged. Some wellness programs utilize technology to track participation, integrate with wearables, and report other analytics. Ask your insurance carrier if wellness dollars have flexibility in adding or changing the services throughout the year, based on engagement.
SOURCE: Cohn, J. (14 February 2019) "How employers can take advantage of the best-kept wellness secret" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/how-employers-can-take-advantage-of-the-best-kept-wellness-secret
Goodbye group benefits. Hello personalized pay
Do you offer a uniform benefits package to your employees? With five generations in the workplace now, off-the-shelf benefit options are presenting employers with a challenge. Read this blog post to learn more.
In the past, it was typical for a company to provide all employees with access to the same group benefits — regardless of their age, demographics or education level. From health insurance to retirement plans and paid time off, these uniform benefit packages were designed to meet the needs of the entire workforce in one fell swoop.
But over the past few years, these off-the-shelf benefit options have presented a bit of a challenge. With five generations now in the workplace — Gen Z, Millennials, Gen X, Baby Boomers and the silent generation — there are diverse expectations about pay and benefit packages.
For example, baby boomers and the silent generation tend to value health insurance and a robust retirement plan. Meanwhile, Gen X workers seek a healthy work-life balance, advancement opportunities and a competitive 401(k) — or a retirement savings plan that lets you set aside and invest money from your paycheck, to which your employer can then contribute. Millennials and Gen Z prioritize flexibility — they want more paid time off, the ability to work when and where they wish and tuition reimbursement.
There is no one-size-fits-all compensation package that can fairly satisfy each generation of workers. Employees today want to feel heard, understood and cared for by their employer. Furthermore, most want a job that fits with their personal interests and lifestyle.
As a result, companies are moving away from traditional group benefits and taking a more personalized approach to compensation.
Many organizations are using social listening tools, focus groups and surveys to gather information about the types of benefits employees want. Others are taking it a step further and having one-on-one conversations to determine what motivates each individual worker and provides them with a sense of purpose at work. How else will we know what, specifically, each employee wants unless we ask them?
By collecting this information, organizations can tailor packages that effectively meet the varying wants and needs of the diverse workforce. They’re offering mixes of pay, bonuses, flex time, paid time off, retirement plans, student loan repayment assistance and professional growth opportunities. Some companies have designed an a la carte menu of benefits, with which employees can pick and choose the perks they care most about.
According to a recent survey conducted by WorldatWork and KornFerry, organizations also are offering more non-traditional benefits that can further acknowledge employees’ concerns and responsibilities outside of work. Eldercare resource and referral services, women advancement initiatives and disaster relief funds all became significantly more prevalent in employee benefits programs within the last year. Telemedicine, identity theft insurance and paid parental leave offerings increased as well.
And many organizations are taking innovation one step further. One firm recently introduced a new benefits reward program in which employees earn points based on both personal and company-wide achievements and then cash them in for perks across various categories: health and wellness, travel, housing, transportation, time off, annual grocery passes — you name it. The purpose is to give employees the power to choose the types of perks that mean the post to them.
Personalized pay can boost attraction and retention
The unemployment rate is the lowest it’s been in decades, and the war for talent is extremely tough. The average tenure for workers is 4.6 years. For millennials, it’s half that.
This sort of high employee turnover can take a massive toll on a company’s bottom line: Experts estimate that it can cost up to twice an employee’s salary to recruit and train a replacement. Not to mention, employee churn can damage company morale and tarnish your company’s reputation.
Customized pay and benefits plans can make an employer be more attractive in a tight, crowded job market. If you want to not only attract top talent but retain them as well, it’s worth taking the time to understand what matters to your candidates and offering them personalized pay and reward packages.
Organizations need to introduce more flexibility into their pay packages and adapt to the needs of the changing workforce. After all, when you invest in your employees, you invest in the overall success and performance of your business.
SOURCE: Wesselkamper, B. (11 February 2019) "Goodbye group benefits. Hello personalized pay" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/opinion/tailored-employee-benefit-plans-gaining-popularity
Hospital pricing transparency: More information, more confusion?
As of January 1, a new rule that requires hospitals to list the prices of all their services and medications they provide is in effect. Read this blog post to learn more about this ruling.
As of the first of this year, a new rule is in effect that requires hospitals to list the price for all the services they provide and medications they prescribe for patients while they’re in the hospital. In theory, this should give patients more information that can help them decide where it makes the most economic sense to receive hospital care. In actuality, while there’s a wealth of new data available, it can be difficult to find — and nearly impossible for people outside the healthcare industry to understand.
The document that aggregates the price information is called a chargemaster, and it can contain tens of thousands of entries. The new rule doesn’t require that the information be written in plain language, only that it be machine readable, so much of the data reads like it’s in a yet-to-be-discovered language. For example, if you download Memorial Sloan Kettering’s chargemaster, you’ll find an Excel spreadsheet that contains 13,088 entries such as “CAP MALE/FEMALE RAIL, $765” and “BX SUBCUT SKIN/INC, $1,771.” Even if a patient puzzles out the meaning of these abbreviations, the prices listed are different from the lower fees that insurers negotiate, so estimating how much you would pay for care is complicated at best and impossible at worst.
The goal of the hospital pricing transparency rule is to help patients understand the cost of their care and choose more wisely when deciding where to receive that care. Unfortunately, the information that is now available adds to the confusion and doesn’t help patients make one-to-one price comparisons when choosing where to receive care. In addition, the rule only covers care delivered by a hospital, so patients don’t have the information they need to make price comparisons for services performed in doctor’s offices, urgent care facilities, diagnostic test sites and outpatient surgical centers.
Though the new rule generally doesn’t help employees, employers can.
Even if price transparency doesn’t help workers better understand the cost of care and choose where to receive that care, there are strategies and resources that employers can provide to help their employees make more informed decisions about healthcare. Here are some of them.
Second opinions. Wrong diagnoses, inappropriate treatments (treatments that don’t meet the evidenced-based standard of care) and medical errors all drive up healthcare costs for both employers and employees and can lead to poorer health outcomes. One strategy to lower the risk of these types of problems is providing employees with streamlined access to second opinions from experienced physicians.
A second opinion can confirm or change an employee’s diagnosis, suggest other treatment options and pinpoint misdiagnoses, especially in the case of serious and complex conditions like cancer, autoimmune disease and back and joint problems. In fact, a Mayo Clinic study found that 88% of people who sought a second opinion from the hospital’s physicians for a complex medical condition received a new or refined diagnosis. Employers can make second opinions available to employees through several channels, including a health insurance plan or as a standalone benefit.
Care coordination. Duplicate testing and medical care is another source of wasted healthcare dollars. When communication between healthcare providers is inconsistent or medical records aren’t updated and shared among all treating physicians, employees may undergo repeat testing — for example, when a primary care physician and a cardiologist both order a cardiac stress test for a patient with shortness of breath. Employers can offer care coordination through a case manager for employees who are living with multiple health conditions.
This support can lower the risk of duplicative testing as well as duplicate prescriptions or medications that can result in interactions, which can put an employee’s health needlessly at risk. Another piece of this equation is the review and coordination of medical records, which is especially important when employees see multiple physicians. A medical records management service should include a review of the employee’s records by an RN or physician, consolidation of a comprehensive medical record, and the creation of a secure electronic medical record that can be shared with the employee’s permission with all treating physicians.
Guidance on where to receive care. While you can undergo a colonoscopy, medication infusion or a range of common surgical procedures at a hospital, that may not always be the most appropriate or cost-effective place to receive care. By offering employees the ability to talk with a care manager or adviser about the procedure they need and the options for where they can receive that care (a hospital, outpatient surgery center or doctor’s office), employers can help them receive the care they need and lower both claims costs and employee out-of-pocket costs.
Medical bill review. Another resource employers can offer to make sure healthcare costs are carefully managed is a medical bill review. Experts estimate that between 30% and 80% of medical bills contain errors that increase costs. There are many different causes of these errors, including the use of the incorrect billing codes and use of out-of-network healthcare providers. In addition to offering employees the services of a medical billing review and negotiation firm, they can provide education that lets employees know what types of errors are commonly made and how to spot them on their own bills.
SOURCE: Varn, M. (13 February 2019) "Hospital pricing transparency: More information, more confusion?" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/hospital-pricing-transparency-more-information-more-confusion?brief=00000152-14a5-d1cc-a5fa-7cff48fe0001
7 employee engagement trends gaining momentum
According to a Gallup survey, organizations with highly-engaged employees outperform the competition by 147 percent in earnings per share. Read this blog post for seven employee engagement trends that are gaining momentum.
Employee engagement is top-of-mind in the HR industry these days. In many ways, it might be one of employers’ biggest pain points. In this tight job market, it’s easier for employees to jump ship — and that’s a big headache for HR. Employers now are working more diligently to retain their key talent who are apt to go elsewhere to seek the working environment they desire.
According to the Society for Human Resource Management, it costs a company, on average, six to nine months of an employee’s salary to replace her. So, for an employee making $40,000 a year, that’s $20,000 to $30,000 in recruiting and training expenses. Others predict the cost is even more: That losing a salaried employee can cost as much as twice their salary, especially for a high earner or executive-level employee.
Think about it. Salary and benefits are important, sure. But in this job market, employees can find what they are looking for in a compensation package. So, what makes the difference? It’s employee engagement — the extent to which an employee’s personal goals and interests align with the vision and goals of the company.
Organizations with highly-engaged employees outperform the competition by 147% in earnings per share, according to Gallup. More companies are realizing the effect that improved employee engagement is having on employee performance, retention and productivity. A G2 Crowd survey reported that in 2019, companies will increase their spending on employee engagement by 45%.
This year has all the makings of being a pivotal year for employee engagement with retention being equally, or even more as important, as recruitment. HR professionals, and companies as a whole, need to review employee engagement practices to make sure their strategy impacts retention, production and performance.
What’s ahead in 2019 for employee engagement? Here are my predictions.
Employers will put much more focus on employee engagement. An analysis from PwC says the new standard for employee engagement is fulfillment — the feeling people have when their work and their motivations are aligned and they gain a sense of meaning and purpose as a result. Others say it’s the employee experience — that it’s more than better perks and benefits. It’s ensuring that employees have positive, meaningful interactions with the organization at every step. Whether it’s employee engagement, fulfillment or experience, 2019 is going to see more employers, and the industry itself, paying much more attention to employee engagement.
Flexibility will be all-important. Millennials, the largest generation in the workforce, have made it loud and clear that they want more workplace flexibility including the ability to shift work hours (such as starting the day earlier or later) and working from home one or two days a week. Turns out that non-millennials are saying the same thing. Look for companies to incorporate more flexibility into company policies this year.
The annual performance review continues to be on its way out. The trend away from the annual performance review in favor of more frequent, real-time reviews and informal feedback will start to take hold in 2019. Ongoing communication is a much more effective tactic. Millennials, in particular, like at least monthly review format/commentary. In addition, steps for development, growth and mentoring can influence an employee’s satisfaction and desire to stay with the company.
Employee appreciation will move to a year-round activity. Call it what you want — recognition, appreciation, etc. But it’s not about an end-of-year holiday party or an employee of the month recognition. And it doesn’t have to always be about the cost of doing it — a manager’s thanks and lunch brought in at the end of a big project can go a long way. This year will see more attention to demonstrating employee appreciation on a year-round basis and rethinking the ways in which we can show it.
Companies will add benefits that satisfy employee lifestyle needs. Employee engagement no longer is one-size-fits-all. Employees have various lifestyle needs that companies can address that show they care about employee life stages. For example, more attention is being paid today to the needs of nursing mothers, and many companies are providing lactation services. For example, Goldman Sachs last year started paying for nursing mothers to ship breast milk to their homes when they travel. PwC introduced a phased return-to-work program following parental leave. Look for companies to identify and add more unique benefits in 2019 that show their employees they care about their life stages.
Employers will take a much more holistic approach to wellness. Gone are the days when employee wellness meant providing a gym membership and orchestrating an internal health fair. In recent years we have seen companies start broadening their wellness approach. Happy, healthy employees are generally engaged employees and that involves addressing all aspects of wellness. According to the University of Maryland, there are eight mutually-interdependent dimensions of wellness — physical, mental, emotional, social, occupational, financial, purposeful and environmental. They don’t have to be equally balanced, and employers likely can’t address all of them. 2019 will see employers studying the holistic wellness approach and making changes that fit their particular organization and their employees the best.
Gamification will be adopted more widely. Whether it’s for onboarding, benefits communication/understanding, wellness programs or other employee engagement tactics, gamification will be considered and adopted more widely this year. Gamification techniques can be used as well to increase use of intranets, social media platforms and mobile communication. Look for employers this year to create more apps and digital games to increase employee engagement.
Employees who feel their companies care about them are more engaged and dedicated to company success. Those of us in HR need to pay as much attention to employee engagement this year as we do to compensation and benefits in order to succeed with employee retention.
SOURCE: Roberts, R. (13 February 2019) "7 employee engagement trends gaining momentum" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/these-employee-engagement-trends-are-gaining-momentum
Employee wellness programs and compliance: What to know right now
How do you decipher any given wellness program's compliance under the law? Under the Health Insurance Portability & Accountability Act (HIPAA) current guidance, employers need to assess whether the plan is “purely participatory” or “health-contingent.” Read this blog post to learn more about wellness program regulations.
Defining “wellness” for any one person is no simple task, and neither is deciphering a given wellness program’s compliance under the law.
In 2016, when the Equal Employment Opportunity Commission (EEOC) released its final regulations defining a “voluntary” program under the Americans with Disabilities Act (ADA), the entire landscape — at least what can be seen on a hazy day — appeared defined. But thanks to AARP’s successful challenge to these regulations and the EEOC’s recent acknowledgment of the demise of its incentive limitations, employers find themselves back in the “Wild West” of sorts for wellness compliance.
That being said, the uncertainty is not new for employers with wellness programs, and there is now more guidance than before, so let’s take a moment to take in the current view.
The current guidance under the Health Insurance Portability & Accountability Act (HIPAA) remains unchanged, so any wellness program integrated with a health plan or otherwise constituting a health plan itself, employers need to assess whether the plan is “purely participatory” or “health-contingent.” The health-contingent plans (which condition the award of incentives on accomplishing a health goal) will require additional compliance considerations, including—but not limited to—incentive limitations, reasonable alternative standards (RAS), and notice requirements.
The RAS should be of particular importance because they can be missed most out of the compliance parameters. Often there is an “accidental” program such as a tobacco surcharge, and the employer does not even realize the wellness rules are implicated, or the employer’s RAS is another health-contingent parameter that actually necessitates another RAS.
The Department of Labor is actively enforcing compliance in this area, so employers will want to take care.
Additionally, the EEOC’s ADA (and Genetic Information Nondiscrimination Act) regulations are still largely in force. This seems to be a common misconception—ranging from a celebration of no rules to a lament for the end of incentivized wellness programs that include disability-related questionnaires (like an average health risk assessment) or medical examinations (including biometric screenings).
The truth is somewhere in the middle.
The ADA’s own RAS and notice concepts still apply, along with confidentiality requirements. All that has changed is that the EEOC has declined (again) to tell us at what point an incentive turns a program compulsory. So employers sponsoring wellness programs subject to the ADA have three choices, based on risk tolerance (In truth, there are four options, but charging above the ADA’s previous incentive limitations would be excessively risky):
- Run incentives for ADA plans up to the 30 percent cap that existed before. This is the riskiest approach. To take this route, an employer must rely upon HIPAA’s similar (though not exactly the same) incentive limitations as indicative of non-compulsory levels. The fact that Judge Bates did not accept this argument in the AARP case advises against this approach, but this case does not have global application. If this path is chosen, it will be imperative to document analysis as to why this incentive preserves voluntariness for your participants.
- Keep the incentives below the previous 30 percent cap but incentivize the program. This approach does have risk because no one knows at what point an incentive takes choice away from participants. However, the incentive is a useful tool to motivate and reward health-conscientious behavior. The wellness incentive limitations stood at 20 percent under the HIPAA regulations for quite some time without much concern, so this could be a relatively safe target. But the most important thing is to carefully assess the overall structure of the program(s) offered, consider the culture and demographics of the employees who may participate, and balance the desire to motivate against the particular tensions of the program to decide on a reasonable incentive. Make sure to document this analysis and reconsider it every time a program changes.
- Not incentivize the program at all. This is the most conservative approach from a compliance perspective but ultimately not required. Before the EEOC’s 2016 regulations, employers were incentivizing programs subject to the ADA, and nothing about the AARP case or the EEOC’s response to it prohibits incentives.
There’s no doubt the wellness compliance landscape has changed a little over this last year, but this is also just the tip of the iceberg. With enforcement heating up, it is imperative for employers to carefully consider compliance, document the reasonableness of incentive choices and lean on trusted counsel when necessary to avoid potentially costly and time-consuming issues.
SOURCE: Davenport, B. (13 February 2019) "Employee wellness programs and compliance: What to know right now" (Web Blog Post). Retrieved from https://www.benefitspro.com/2019/02/13/employee-wellness-programs-and-compliance-what-to-know-right-now/
Don’t Forget to Post OSHA Injury and Illness Data at Your Worksite
Employers who are covered by the Occupational Safety and Health Administration's (OSHA's) record-keeping rule must post a summary of 2018 work-related injury and illnesses in a noticeable place from Feb. 1 to April 30. Read this blog post from SHRM to learn more.
Employers that are covered by the Occupational Safety and Health Administration's (OSHA's) record-keeping rule must post a summary of 2018 work-related injury and illnesses in a noticeable place from Feb. 1 to April 30. Here are some compliance tips for employers to review.
Required Posting
Many employers with more than 10 employees—except for those in certain low-risk industries—must keep a record of serious work-related injuries and illnesses. But minor injuries that are treated only by first aid do not need to be recorded.
Employers must complete an incident report (Form 301) for each injury or illness and log work-related incidents on OSHA Form 300. Form 300A is a summary of the information in the log that must be posted in the worksite from Feb. 1 to April 30 each year.
"This information helps employers, workers and OSHA evaluate the safety of a workplace, understand industry hazards, and implement worker protections to reduce and eliminate hazards," according to OSHA's website.
Employers should note that they are required to keep a separate 300 log for each "establishment," which is defined as "a single physical location where business is conducted or where services or industrial operations are performed."
If employees don't work at a single physical location, then the establishment is the location from which the employees are supervised or that serves as their base.
Employers frequently ask if they need to complete and post Form 300A if there were no injuries at the relevant establishment. "The short answer is yes, " said Tressi Cordaro, an attorney with Jackson Lewis in Washington, D.C. "If an employer recorded no injuries or illnesses in 2018 for that establishment, then the employer must enter 'zero' on the total line."
Correct Signature
Before the OSHA Form 300A is posted in the worksite, a company executive must review it and certify that "he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete," according to OSHA.
A common mistake seen on 300A forms is that companies forget to have them signed, noted John Martin, an attorney with Ogletree Deakins in Washington, D.C.
There are only four company representatives who may certify the summary:
- An owner of the company.
- An officer of the corporation.
- The highest-ranking company official working at the site.
- The immediate supervisor of the highest-ranking company official working at the site.
Businesses commonly make the mistake of having an HR or safety supervisor sign the form, said Edwin Foulke Jr., an attorney with Fisher Phillips in Atlanta and Washington, D.C., and the former head of OSHA under President George W. Bush.
They need to get at least the plant manager to sign it, he said, noting that the representative who signs Form 300A must know how numbers in the summary were obtained.
Once the 300A form is completed, it should be posted in a conspicuous place where other employment notices are usually posted.
Electronic Filing
The Improve Tracking of Workplace Injuries and Illnesses rule requires covered establishments with at least 20 employees to also electronically submit Form 300A to OSHA.
Large establishments with 250 or more employees were also supposed to begin electronically submitting data from the 300 and 301 forms in 2018, but the federal government recently eliminated that requirement. However, those establishments still must electronically submit their 300A summaries.
The deadline to electronically submit 2018 information is March 2.
SOURCE: Nagele-Piazza, L. (1 February 2019) "Don’t Forget to Post OSHA Injury and Illness Data at Your Worksite" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/don%E2%80%99t-forget-to-post-osha-injury-and-illness-data-at-your-worksite.aspx/
Top 4 HR trends to watch this year
HR departments are now looking to implement innovative strategies to better engage employees and maximize productivity. Continue reading this blog post for the top HR trends of 2019.
HR professionals can no longer rest on their laurels. They are now looking to implement innovative strategies to better engage employees, improve the company’s brand both internally and externally, maximize productivity and increase the organization’s profitability.
So how can HR professionals go about making this happen? The success of HR will largely be based on staying nimble, evolving their organization’s policies and leveraging technological advances to ultimately reshape their workplace practices.
With that in mind, here are the top HR trends that will take center stage in 2019.
The gig economy and the importance of flexibility. The gig economy, which is comprised of individuals with short-term or temporary engagements with a company, is substantially important to employers. Here, workers are seeking increased flexibility and control over their work environments. Since many questions remain unanswered regarding worker classification issues and the application of existing laws in the gig economy, look for the Department of Labor to issue an opinion letter or guidance in 2019 detailing how a company may compliantly work within the gig economy and not run afoul of existing independent contractors.
Flexibility also is important for all employees — not just for the gig economy. While telecommuting and remote positions are not new, they are being emphasized again to better engage employees and increase retention metrics.
The tech effect on future of HR. The strategic and consistent use of workforce data analytics to predict and improve a company’s performance has exploded over the last several years, with additional momentum expected in 2019. While most HR professionals rely on metrics for basic recruiting and turnover rates, more in-depth analytics and trend spotting has become the norm.
Once trends are identified in, for example, turnover rates, an HR professional should have the tools to dive into the data and analyze root causes, such as the need for manager training, review of compensation strategies or a change in the company’s culture. Using predictive analytics in the HR space is helping companies make better informed, dynamic and wiser decisions based on historical data, as well as placing HR on the level of other data-driven company departments, such as finance and marketing.
The collection of this enormous amount of data also poses challenges and potential risks to companies, including negative perceptions among employees about how their data is being used, employee privacy laws and potential security breaches. Strong and comprehensive security policies, protocols and controls are necessary to ensure employers are keeping their employees’ data safe. In 2019, a steady flow of communications to employees regarding advanced security and usage policies is key to prevent data misuse or misunderstanding regarding how information is collected and used.
Artificial intelligence also will continue to be a significant focus driving improvement in the HR arena. Determining which data to collect, analyze and protect will provide opportunities for AI to assume a larger role in HR. Also, in some large organizations, AI already is being used for more than just automating repetitive HR tasks, such as onboarding new employees. The future of AI for most companies will include creating more personalized employee experiences as well as supporting critical decisions. From analyzing performance data to eliminating biases when screening candidates, AI will continue to be a pivotal HR tool.
Strategies for successful recruitment. Running an effective talent pipeline should be the objective of all hiring endeavors. Pipelining is consistently gaining traction as a recruitment tool for new employees. The concept employs marketing concepts to ensure that companies have a diverse group of strong recruits waiting to be hired. Pipelining reduces time to hire and leads to better quality candidates.
Health, wellness and adequate employee training. Another area of importance is multi-faceted wellness programs, which focus on an employee’s total well-being, from nutrition to financial wellness. These programs often include a comprehensive employee assistance program, training and activities during worktime. The training can focus on anything from physical health to development of employees’ knowledge base and technology-focused education. A greater emphasis also is being placed on workplace communication coaching, such as collaboration and negotiation, which are critical to success in the workplace.
Continued training and heightened prevention of sexual harassment and discrimination will be another trend this year. Organizations big and small must ensure that compliant policies are in place and employees are trained on the policies. Several states including California, New York, Connecticut and Maine already mandate that private employers must provide harassment training to workers, and the number of states requiring this training is expected to increase in the coming years.
SOURCE: Seltzer, M. (29 January 2019) "Top 4 HR trends to watch this year" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/top-4-hr-trends-to-watch-this-year?feed=00000152-a2fb-d118-ab57-b3ff6e310000
U.S. Department of Labor's New Compliance Assistance Tool
On February 6, 2019, the U.S. Department of Labor announced the launch of the electronic version of their Compliance Assistance Tool (Handy Reference Guide to the Fair Labor Standards Act (FLSA)). This new version will assist employers by providing them with basic Wage and Hour Division (WHD) information, as well as links to other resources.
This electronic resource was created as a part of the WHD's efforts to modernize compliance assistance tools, as well as provide easy-to-use, accessible compliance information. In coexistence with worker.gov, employer.gov, and other online tools, this tool will help improve employer understanding of federal labor laws and regulations.
View the digital Compliance Assistance Tool here.
Read the DOL's full press release here.
SOURCE: U.S. Department of Labor (6 February 2019) "U.S. Department of Labor Announces New Compliance Assistance Tool" (Web Press Release). Retrieved from https://www.dol.gov/newsroom/releases/whd/whd20190206-0