The Supreme Court gives employee's more room to sue you
The Supreme Court’s latest ruling isn’t going to make a lot of employers happy.
The High Court just made it easier for employees to sue, claiming they were constructively discharged.
Constructive discharge occurs when an employer makes a person’s working conditions so intolerable — via some underhanded actions, like harassment or discrimination — that the person felt compelled to resign.
Federal law says private sector employees must file a charge of harassment, discrimination or constructive discharge with the EEOC within 180 days from the day the illegal act took place if they want to press charges in federal court. The deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination or harassment on the same basis.
Federal employees have just 45 days to contact an Equal Employment Opportunity (EEO) counselor to be able to file a charge.
The real issue
The question that was posed to the Supreme Court: In constructive discharge cases, what constitutes the last act of discrimination or harassment — i.e., when does the statute of limitations clock start running?
The High Court’s answer: The date the employee resigns (even if it’s not the person’s last day of work).
What happened?
The issue came up in a case in which former postal worker Marvin Green sued the U.S. Postal Service (USPS), claiming constructive discharge.
In late 2009, Green complained to USPS management that he’d been denied a promotion because he was African-American. From there, his relationship with the USPS entered a downward spiral that eventually led to his supervisors accusing him of deliberately delaying the mail (a federal offense).
Then, on Dec. 16, 2009, both parties signed an agreement in which the USPS agreed not to pursue criminal charges in exchange for Green either retiring or accepting a position in a remote location for far less pay. Green elected to retire and submitted his resignation on Feb. 9, 2010 (effective March 31).
On March 22, Green contacted an EEO counselor and alleged that he was constructively discharged. He then filed suit in federal district court, which dismissed his charges on the basis that it was untimely because he failed to contact an EEO counselor within 45 days of Dec. 16, the date he signed the agreement.
Green appealed, and the case made it all the way to the Supreme Court, which ruled in Green’s favor when it came to the start of the 45-day limitations period.
It said the period begins on the date an employee resigns.
The reasoning
The court said in cases in which an employee claims to have been fired for discriminatory reasons, the matter alleged to be discriminatory includes the discharge itself. Therefore, the 45-day limitations period begins when the employee is discharged.
The justices applied that same line of thinking to constructive discharge cases — saying that the matter alleged to be discriminatory includes the employee’s resignation.
Two reasons it did this:
- It said a resignation is part of the elements of a constructive discharge claim. So without a resignation, the claim can’t even exist, and
- It said requiring that a complaint be filed before resignation occurs would ignore that an employee may not be in a position to leave his job immediately.
Far-reaching effect
While this case dealt with a federal employee’s obligation to report to an EEO counselor within 45 days, it indicated that lower courts could apply the same reasoning to the 180/300-day periods imposed upon private sector employees.
One could even surmise that the ruling could also apply to state anti-discrimination and anti-harassment laws as well.
Cite: Green v. Brennan (Postmaster General)
Originally Posted by HRMorning.com
5 Things Employers Need to Know About Overtime Rules
Original post benefitsnews.com
With compensation taking up the biggest slice of the benefits pie, employers are paying close attention to the Department of Labor’s proposed changes to the overtime rules – expected to be released as early as this month – under the Fair Labor Standards Act.
The proposed rules bump the salary threshold for overtime from $23,600/year to $50,440/year. If the final rules stay the same as the proposed rules, employees currently working in salaried positions who make less than $50,440 will now be entitled to overtime pay. That’s a 113% increase, which is “incredibly dramatic,” says Lisa Horn, spokesperson for the Partnership to Protect Workplace Opportunity.
“Not only does it raise it that high, but what many have failed to hone in on is the fact that this is an annual increase,” she adds. “That’s quite impactful on top of that huge initial jump in the salary increase.”
Horn says some research predicts that because of that annual increase, which is tied to the 40th percentile of all full-time salaried workers in the country, the minimum salary threshold for overtime could rise as high as $90,000 within five to seven years.
It’s possible the final rules could include a lower salary threshold – Horn says she’s heard it could be $47,000/year instead of $50,440 – but even if that’s the case, it will still mean a big jump. Employers will have to decide whether to increase workers’ salaries to make them exempt from overtime or reclassify them as non-exempt.
And since many employers have different benefit structures for hourly and salaried workers, if some employees need to be reclassified as non-exempt they could see their benefits affected.
Moreover, in the eyes of employees, being reclassified as non-exempt is “seen as a demotion,” says Horn, who also works as SHRM’s director of Congressional affairs. “Because you’re continually trying to climb most employees from that non-exempt hourly status to the more professional exempt status.”
Here are five things employers need to know about the proposed rules from the PPWO, a group of more than 70 employer organizations and companies created to respond to the overtime rule changes:
1. This proposal represents a 113% immediate increase plus an annual increase. The proposed overtime rule would initially raise the salary threshold defining which employees must be paid overtime by 113%, from $23,600 to $50,440. In addition, the DOL has proposed increasing this minimum salary on an annual basis.
2. The proposal will impact millions of workers and cost billions to businesses.According to the DOL, the rule will affect over 10 million workers – workers who may see their workplace flexibility diminished or a loss in other benefits they rely on, says the PPWO. The National Retail Federation estimates retail and restaurant businesses will see an increase of more than $8.4 billion per year in costs.
3. The implementation window is very short. As proposed, the implementation timeline for this rule is only 60 days, which will place a massive burden on HR departments and organizations scrambling to comply, according to the PPWO. “That 60 days is just completely unworkable from an organization’s standpoint and having to implement these changes in such a short time frame,” says Horn. “These are, for some organizations, really massive changes.”
4. Many employees will need to be demoted. This change could force employers to reclassify professional employees from salaried to hourly – including many managers and those with advanced degrees – resulting in a loss in benefits, bonuses, and flexibility, and a reduction in professional opportunities.
5. This is a blanket increase that disproportionally impacts lower cost areas. A one-size-fits-all approach is inappropriate for the different industries and various regions of the country. While the threshold of $50,440 may be reasonable in New York City, a comparable cost of living in Birmingham, Alabama, for example, is only about $21,000 – making the threshold unattainable and unrealistic for many small businesses in lower cost of living areas, according to the PPWO.
Many Patients Don't Get Much Out of EHRs
Original post benefitspro.com
Most Americans appear to view electronic health records (EHR) as a welcome convenience, but not as a game-changing medical advance. That’s what one can glean from a recent survey of patients conducted by HealthMine.
The poll of 500 insured adults found that 60 percent have access to an electronic health record, but only 22 percent of those with an EHR say they use it to guide their medical decisions. The great majority of patients say they rely on the technology as a way to “stay informed.”
Other results:
- 71 percent of those with EHRs say they access the records when needed
- 15 percent say it’s hard to understand the information presented
- 14 percent never access their EHR
Of course, not all EHRs are created equal. Some patients report only having access to a limited amount of information, and others say they are not able to see that same information as their doctor:
- 69 percent can see lab work/blood tests
- 60 percent see their prescriptions
- 55 percent view their billing information
- 47 percent see notes from their physician
Bryce Williams, CEO of HealthMine, suggested that many patients have not yet fully grasped the value of EHRs. Educating people on how to benefit from them could be an important part of wellness programs, he said.
"Electronic health records are still in the early phases of consumer adoption. They have the potential to engage consumers more directly in managing their health," he said. "Wellness programs can help bridge the gap between EHR adoption and understanding by making the information both meaningful and actionable for patients."
Wellness Programs Benefit Employers, Employees
Original post benefitspro.com
Offering employee wellness programs isn’t just an exercise in altruism for employers. It pays off where most companies would value it most: the bottom line.
According to Forbes, companies are jumping on the wellness program bandwagon right and left, to varying degrees. In fact, Society for Human Resource Management statistics indicate that in 2015, 80 percent of employers offered preventive wellness resources and educational information, with 70 percent providing full strategic wellness programs.
But while companies are happy that such programs pay off in healthier employees — 59 percent of employers offering such programs believe they’ve resulted in improved worker health — those programs also pay off in ways that have more to do with the balance sheet than the scales.
The cost of wellness programs is nothing to be sneezed at, but on the other hand, employees involved in them often shift their diets to healthier foods, quit smoking, have a better mental outlook on life, and watch the pounds come off through diet and exercise. That means they’re less likely to have to take so much advantage of company-provided health plans, if they’re reducing or eliminating some of the risk factors that could send them to the doctor more often.
Healthy employees might exercise more and weigh less, but they’re also more engaged, and thus more productive. Better health can also keep them on the job longer, with better results and better job satisfaction. They’re less stressed, miss fewer days at work and don’t look for a new job as often; all those things add up to an 8 percent improvement in productivity.
All of that can translate, for most programs, to dollars and cents: a return on investment of approximately 3:1. It can, however, go as high as 6:1, thanks to reduced health care costs that result when workers are eating better, exercising more, and forestalling some of the conditions that can result in mega health care bills — and equally mega premiums.
The Dish with Jake Meyer
May’s Dish is serving up Saxon’s own Jake Meyer’s favorite foods.
Outside of the office, Jake enjoys spending time with friends and family. An avid sports fan, he enjoys attending sporting events as often as possible, which makes sense that his favorite dish at home is gameday ready. His quick, easy and delicious chili is ready in 30 minutes and is the perfect dish to bring to the get-together. It’s simple, enough to share and always a crowd favorite.
Quick, easy and delicious chili ready in 30 minutes
Ingredients
- 1 lb. lean ground beef
- ½ onion, diced
- ½ green pepper, diced
- 1 packet of chili seasoning
- 1 can diced tomatoes
- 1 can chili style tomatoes (can substitute regular diced tomatoes)
- 1 can kidney beans
- 1 can chili beans (can substitute regular kidney beans)
- Kosher or sea salt
- Chili powder
- Cumin
- Hot sauce
Directions
- Brown 1 lb. of ground beef
- Add ½ of a medium sized diced onion and ½ of a diced green pepper and cook until they begin to soften
- Add 1 packet of chili seasoning and stir to coat the meat
- Add 2 cans of tomatoes and 2 cans of beans. Stir mixture together
- Add a pinch of kosher or sea salt
- Season with chili powder, cumin and your favorite hot sauce to taste. I prefer it spicy so I am very liberal with these ingredients.
- Simmer for 10 minutes to thicken and let the flavors meld together
*Top with diced raw onion, cheese and sour cream as desired. Serve with sweet cornbread and enjoy!
*Feeds 4-6 people
When Jake is enjoying a night out he loves to try fun new restaurants and bars, but his favorite spot is Terry’s Turf Club feature’s the best burgers in Cincinnati and perhaps the world, according to Jake. Their wide variety of toppings (you can top your burger with crab cake or lobster meat if you choose) sets Terry’s apart and allows you to get creative with your burger.
It’s a small, hole-in-the-wall kind of place so expect a wait on a Friday or Saturday night. Grab a craft beer from the bar while you wait, because I promise the burger is worth it!
Terry’s Turf Club @ 4618 Eastern Ave, Cincinnati, OH 45226
Final Rule Released: Fair Labor Standards Act, Overtime Regulation
From the Society for Human Resources.
Today, the Department of Labor (DOL) released its final regulations making changes to Part 541 governing overtime exemptions under the Fair Labor Standards Act (FLSA). As you know, SHRM leads the employer coalition, the Partnership to Protect Workplace Opportunity, on the rule and SHRM members have shared their views on numerous occasions with Congress and the Administration through testimony, listening sessions, comments on the regulation, and thousands of letters to policymakers.
While SHRM appreciates the Administration’s attention to some of the concerns relayed by SHRM members, we are disappointed that the final rule includes a significant increase to the salary threshold and automatic increases in the future. These will present considerable challenges to employees and employers. This is why SHRM-supported legislation to block the rule, pending a full economic analysis of the changes to overtime regulations, is still needed. This legislation also contains critical provisions preventing the rule from including automatic updates to the salary threshold.
SHRM is reviewing the final rule and will provide information and resources over the next few days to help you understand the changes and prepare to implement the rule in your workplace.
In the meantime, here are the key elements of the new regulation that you need to know now:
1. Salary Threshold Changed to $913/week ($47,476 per Year)
This threshold doubles the current salary threshold level. While this level is slightly lower than the threshold in the proposed rule, it still encompasses many employees that are currently classified as exempt. SHRM was disappointed that DOL did not offer a more reasonable increase and set the threshold, as it has in the past, at a level designed to encompass those employees that are clearly not engaged in exempt-type work.
2. Automatic Salary Threshold Increases Every 3 Years (Not Annually) to Maintain Level at 40th Percentile in Lowest-Wage Census Region
DOL reduced the frequency of the automatic increases in response to concerns raised by SHRM and others. Instead of annual increases, the threshold will be adjusted every 3 years to maintain the level at the 40th percentile of full-time salaried workers in the lowest-wage Census region. Automatically updating the salary threshold, however, does not allow the government to take into account changing economic conditions, specific impact on certain industries, or regional differences. It also denies the public the ability to have input on the threshold as required by the regulatory process.
3. Duties Test is Unchanged
The absence of a duties test change is a significant win for the thousands of SHRM members who expressed concern in this area. DOL did not make changes to the standard duties test.
4. Effective Date is December 1, 2016.
SHRM advocated for a longer implementation period than the standard 60 days and the final rule provides additional time for employers to prepare. With the rule going into effect on December 1, 2016, HR professionals should review their current workforce immediately to determine which employees are affected, whether to re-classify those employees, and execute a communications strategy. HR should keep in mind the periodic adjustments and set a regular review process.
5. Highly Compensated Employee (HCE) Exemption Is Now $134,004 Per Year
The final rule retains the methodology in the proposed rule setting the threshold at the 90th percentile of full-time salaried workers nationally.
6. Stay Tuned for SHRM Member Resources…
• SHRM Webcast – Understanding DOL's New Overtime Rule. Register Now for the Thursday, May 19, 2 p.m. ET webcast!
• SHRM Special Report for HR – coming soon! Look for an upcoming SHRM summary of the final rule with tips on compliance. Visit SHRM’s Overtime Resource Page for additional resources.
• SHRM’s 2016 Annual Conference -- From the final FLSA overtime regulations to health care to performance management to the latest innovations in HR, you’ll get the practical tools and resources you need to solve your toughest HR challenges.
7. Advocacy in Congress is Even More Important
While the final rule contains some limited improvements, it is critical for Congress to pass the Protecting Workplace Advancement and Opportunity Act (S. 2707 and H.R. 4773), which would nullify this rule and require DOL to perform an economic analysis of how changes to overtime regulations will impact nonprofits, small businesses, and employers in other vulnerable industry sectors before issuing a new rule. Visit SHRM’s call to action to quickly and easily send an email to your members of Congress to ask that they cosponsor this important workplace legislation.
NEXT STEPS: As referenced above, Congress will continue to try to nullify the rule through legislation requiring DOL to conduct a robust economic analysis, by refusing to fund the rule’s enforcement, and other means. Given the breadth of the rule, SHRM is considering all policy options.
SHRM has taken a leading role in educating the Administration and Congress on the rule’s impact on the workplace. As a member, you can trust that SHRM will keep you up-to-date on every critical detail of the regulations. We’ll also be here to answer your specific questions as you begin to implement these changes over the coming weeks – this is just one way your SHRM membership works for you.
Remote Workers Are Happier
Original post benefitspro.com
People who work remotely are happier, according to a new survey conducted by TinyPulse, an employee engagement firm.
The firm polled 509 U.S. workers who always work remotely about their job satisfaction and compared their responses to those of the roughly 200,000 U.S. employees the firm polls on a monthly basis.
On a scale of 1 to 10, remote workers report an average level of work happiness of 8.1, compared to 7.42 for other employees.
They may rarely see their colleagues and superiors, but remote workers also feel more valued by their employers. On that metric, they have an average score of 7.75, compared to 6.69 for other workers.
The one area in which remote employees come up short, unsurprisingly, is their relationships with colleagues. They rate their co-worker relationships at an average of 7.88, whereas conventional employees rate their ties to officemates 8.47.
The study by TinyPulse suggested strongly that the benefits of allowing employees to work outside of the office outweigh the risks.
Only 27 percent of the remote workers polled said they had experienced a problem due to not being in the same place as fellow employees. And 91 percent said they were more productive in their current arrangement than in an office context.
Another surprising finding: Those who work more days a week are the happiest.
In fact, remote employees who report working seven days a week, but shorter hours, were the most satisfied of all, with an average satisfaction rating of 8.49. The next happiest were those who worked sporadic hours throughout the week, with a rating of 8.12. Those who worked a typical, 9-5 schedule, came in third, at 7.88, just slightly ahead of those who worked consistent but unconventional schedules, such as nights or Sunday-Thursday.
Telecommuting and other flexible work arrangements are all the rage these days, particularly among Silicon Valley firms. Studies have suggested that employers who ease up on attendance and scheduling policies will have happier workers who are just as productive.
Have You Taken Any PTO Lately?
Original post benefitspro.com
Americans might be workaholics, but not necessarily because they’re in love with work. Studies show Americans yearn for vacation time, but some of them can’t bring themselves to take it.
A survey commissioned by Namely, a payroll and benefits company, finds that a majority of U.S. workers intend to take 15 days of vacation per year. It also found that 40 percent of employees have or would be willing to sacrifice pay to gain more paid time off. Similarly, more than two-thirds of workers said that vacation policies were at least somewhat critical when considering a new job.
But as a statement accompanying the survey from the company points out, another recent study found that the average American worker only take 11 days off per year.
The lower average is largely driven by the fact that many employees receive far less than three weeks of vacation a year, but there is some evidence to suggest that some workers who are entitled to generous PTO do not make use of it.
A quarter of workers in the Namely survey cited strict company policies as an obstacle to taking vacation, while a fifth cited “stress at the thought of missing time at work” and 16 percent reported a “negative perception” in their organization of taking time off.
“What this tells us is that despite the best intentions to take large chunks of time away from work and unplug from technology, employees are feeling confined and are using vacation time differently than previous generations,” said Matt Straz, founder and CEO of Namely.
In recent years, a number of major companies have made a point of offering generous vacation benefits. Some offer unlimited vacation, while others have put in place policies to encourage workers to make use of their vacation, including bonuses for taking time off.
6 Tips for Moving Wellness Beyond Biometrics
Original post benefitsnews.com
Employers are increasingly moving from traditional wellness programs to a more comprehensive, total well-being approach.
While this might seem to be unique, it is part of a greater trend — a growing list of employers are moving beyond the standard “one-size-fits all” approach to wellness and toward a more holistic view of total well-being.
In this post-ACA era, employers are facing the reality of ever-increasing medical costs and the need to engage their employees in their personal healthcare decisions. To achieve these goals, more and more are turning to wellness strategies, with over two-thirds of U.S. employers now offering some type of wellness program.
In the past, many implemented turnkey programs that focused purely on physical health. Who among us hasn’t heard about a company that did a 10,000 steps challenge or “Biggest Loser” competition?
Although these programs were a strong first step in the right direction — accepting the critical role that employers can play in improving the health of their employees — the current understanding is that physical health is only one small component of total well-being.
In our drive to promote employee engagement, we are likely missing the mark if we don’t realize that many employees have more urgent needs that divert their attention from focusing on physical health. An employee may have the desire and intent to attend the onsite biometric screening, but it ends up taking a backseat to more urgent needs — financial stress, an aging parent who needs to be cared for, or exhaustion from late nights caring for a sick child.
If our goal is to really move the needle — to increase productivity, enhance engagement, reduce healthcare costs, and position ourselves as employers-of-choice — we must take a more holistic approach to well-being. It is time to move beyond the singular focus on physical health, and begin to address the financial, emotional, spiritual, and social aspects of total well-being.
Luckily, with recent advancements in technology tools, and our greater understanding of employees’ needs, today more than ever employers have the ability to do just that.
Sleep, or lack thereof, has been identified as a major issue for its employees, and organizations are starting to offer sleep programs as an investment in its people. It is believed that this will lead to more productive and mindful employees, and eventually, a better bottom line for the company.
Similarly, companies across the country are implementing other all-encompassing “well-being” programs — such as financial education, yoga and meditation classes, volunteer opportunities, and flex-time — all of which are aimed at helping their employees be more engaged and productive.
Whether your company is already well on your way to developing a comprehensive well-being program or just beginning the journey, many best practices apply to both:
1. Assess your population and offer programs that fit your employees’ unique needs and interests. Just because Google offers a certain program doesn’t mean that it would work well for your company. If you have an older population, a financial education program about saving for retirement will have higher engagement than a program for college loan forgiveness.
2. Ask your employees about the causes of stress that impact them and their families.You can get firsthand feedback about the types of issues that are most relevant in their lives, and then tailor your program to target these high impact areas.
3. Take a multi-year strategic approach. At the outset, determine your desired end-result. Then set goals and implement programs along the way that ensure consistent progress and engagement toward those ends.
4. Use technology to interact with the employees in their preferred social medium. Whether it is a smart phone mobile app, their Fitbit or Apple watch, a Facebook page, or face-to-face contact, employees are more likely to engage if you connect with them through their social channel of choice.
5. Move away from a check-the-box approach in favor of more robust program.Programs with the highest levels of engagement tend to be those that allow employees to personalize their experience and choose from a variety of options and activities.
6. Provide consistent and frequent messaging. Your communication should continue throughout the year and align with your company’s culture and brand.
We’re moving “beyond biometrics” to a more holistic view. Is your company ready to embrace the change?
How to Bridge the Wellness Disconnect
Original post benefitnews.com
HR executives and business leaders are not always aligned about employee well-being or wellness solution buy-in, new research shows, signaling a need for adviser help to bridge the disconnect.
Optum’s seventh annual workplace study surveyed wellness budgets, return on investment (ROI), incentive strategies and challenges in building a culture of health among companies of all sizes.
Seventeen percent of HR executives versus 30% of business leaders think employee well-being is” very good,” according Optum Health’s Seventh Annual Wellness in the Workplace Study, conducted by the Optum Resource Center for Health & Well-Being.
On the other hand, 41% of HR executives versus 32% of business leaders say wellness solutions are important to the benefits mix.
Seth Serxner, chief health officer for Optum says it is important for benefit advisers and consultants to make sure that both HR executives and business leaders are all on the same page when it comes to understanding their wellness programs.
“[Advisers] might think they have everyone on board when speaking to HR executives,” Serxner says. “However, when HR goes to pitch this program to a CFO or members of the C-Suite, they may need to adjust how they present the business case.”
While HR managers view some of the non-financial productivity and moral factors that are important in a wellness program, the non-HR managers are focused on the bottom line, ROI, cost containment and healthcare cost issues, he adds.
“[Non-HR managers] tend to think the population is healthier and more well than the HR folks,” Serxner says. “So they may not think there is as much of a problem as the people who are closer to the data and understand the health risk condition of the population.”
Optum’s survey did find that wellness budgets are not decreasing, but are actually increasing. Twenty-eight percent of employers increased their wellness program budgets, according to the survey, up from 22% last year.
Serxner says advisers should use the data gathered in this study to help ground their clients in respect to what is happening within the client’s respected industry and with their peers.
“Clients will ask, ‘where do I sit in terms of culture of health, how am I doing with how I am investing my money,’ and what we find is it is very helpful to share some of these benchmarks about what other clients are doing and what the trend over time has been,” Serxner says.
Optum’s seventh annual workplace study surveyed wellness budgets, return on investment (ROI), incentive strategies and challenges in building a culture of health among companies of all sizes.
Optum surveyed 554 benefit professionals at U.S. companies across a variety of industries, which offer at least two types of wellness programs to employees. The size of respondent companies ranged from 20% small companies with two to 99 employees, to 38% jumbo employers with 10,000 or more employees.