Tuesday, February 19, 2013

Are you ready for the new health care law?

The Affordable Care Act, commonly referred to as “Obamacare,” looks like it is here to stay. Affected companies will have to offer health insurance required by the Act beginning in 2014. Have you started to plan how Obamacare could impact your Company? Now is the time to start.

Depending on the size of your workforce, your Company may be subject to a sizeable penalty if you do not offer “affordable health coverage” to your full-time employees.

If you qualify as a small employer, your Company could be eligible for certain tax credits if you do decide to offer your employees health care coverage.

The rules to determine the size of your workforce are complicated, especially if your company has a parent, subsidiary, or affiliate. Critically, companies that have a common owner or are otherwise related are generally combined together for purposes of determining whether or not they are covered by the Act.

The basic rules are as follows:

  • If your Company has 50 or more full-time employees or “full-time equivalents” then your Company is a “Large Employer” covered by the Act.
    • A “full-time employee” is an employee who works an average of at least 30 hours per week.
    • To calculate the number of full-time equivalents, you add the number of hours worked by part-time employees per month and divide the total by 120.
      • For example, 2 part-time workers who worked 15 hours each per week or 60 hours per month would be equal to 1 full-time equivalent
  • If you are a “Large Employer” you could be subject to various non-deductible penalties if you fail to provide your full-time employees affordable health coverage. These penalties can reach $2000 per full-time employee per year.
  • If your Company has fewer than 25 full-time equivalent employees, then your Company could be eligible for a Small Employer tax credit.

However, there are a number of potential options and solutions to avoid or limit exposure to the health care law including restructuring the ownership of your related business entities or creatively managing your staffing levels. Significantly, the new health care law defines a full time employee as one who works 30 hours per week. A company may be able to modify employees’ hours worked so that fewer of its employees work 30 hours a week. This can be accomplished through scheduling changes or shifting hours amongst employees.

Wednesday, June 27, 2012

Employer refuses to hire employee because he is not Christian enough?

That is what the EEOC is alleging in a recent federal lawsuit.  According the the lawsuit, the Plaintiff applied for a job at a lighting store.  During his first interview, he was told that he was a good fit for the job.  During his second interview, however, he was "interrogated" about his religious practices and beliefs, including being asked to identify every church he has attended over the past several years; where and when he was “saved,” and the circumstances that led up to it; and asking whether
he“would have a problem” coming into work early to attend bible study before clocking-in. He wa also informed that the majority of the company's employees are Southern Baptist, but that it wasn't required that you go to a Southern Baptist church, as long as you were a “born-again” Christian.

It does not take an employment law expert to tell you that this was completely improper and illegal.  Title VII, and most state law counterparts, prohibit basing hiring decision on religion, unless the entity is a religious employer.  Obviously, a lighting company is not a religious employer.

What does this mean for you? Employers should remember that they cannot discriminate on the basis of religion when making hiring or employment decisions.  As this case demonstrates, doing so can quickly result in a lawsuit

Tuesday, May 22, 2012

Terminating employees because of jury duty?

Can you fire an employee because they have been called for jury duty? The answer is no, and a recent lawsuit (In re Henders, No. 12-c-1147, N.D. Ill.) illustrates the pitfalls with such a decision.  A new employee of the retailer HHGregg informed his supervisor that he had been called for jury duty in federal court in Chicago.  Days later, his manager told him he was being terminated because he was not meeting sales quotas.  The employee called the judge to report that he'd been fired because of jury duty.

Here's where things got messy for the employer.  Federal law prohibits terminating an employee due to jury duty, and, under the law, the judge is entitled to investigate such allegations.  If the judge determines there is probable merit to the claim, he or she can then appoint a lawyer.  Sure enough, the judge investigated and determined that it was likely that the employee had been terminated because of jury duty.  The judge then appointed an attorney to represent the employee, who has now filed a lawsuit against the employer.

What does this mean for you? Although an employer does not have to pay an employee while the employee is serving jury duty, federal law prohibits terminating employees because they have been called for jury duty.  Many states, such as Illinois, have similar laws that would apply to state court trials.  Employers should therefore be cautious when considering discipline for employees called for jury duty.

Friday, April 20, 2012

NLRB Poster effective date on hold - Again

Good news for employers.  The effective date of the new NLRB poster is again on hold, thanks to two recent federal court decisions.  As I discussed in a previous post, the deadline for posting the new poster had been moved to April 30, 2012.  During the past week, there were two federal court decisions effectively putting the effective date of the poster requirement on hold indefinitely.  The first came out of the District Court of South Carolina.  In that case, the court ruled that the NLRB exceeded its authority in requiring the poster.  The second case was from the District of Columbia Court of Appeals.  There, although the court did not definitively rule on the validity of the poster requirement, the court did enter an order temporarily suspending the NLRB's requirement that employers display the poster.  The court will not issue its final ruling until the matter is fully briefed and argued, which could take many months.

What does this mean for you? Although there have been no final decisions on the NLRB poster, employers for the time being are no longer required to display the poster by the April 30 deadline.

Friday, March 9, 2012

Coordinating FMLA leave and ADA obligations

As any human resources professional will attest, complying with the FMLA is an administrative headache. The law is complicated and difficult to follow. However, the one part of the FMLA that is easy to understand is that the employee is required to return to work when her leave expires. Right? Well, maybe not. The EEOC has taken the position that leave is a reasonable accommodation under the ADA. According to the EEOC, this includes leave following the expiration of FMLA leave. To make matters worse, the EEOC is starting to crack down on employers who maintain no-fault termination policies. See my earlier article on this topic.

What does this mean for you? Employers should adopt a flexible approach to employee leave situations, and take into account the ADA's reasonable accommodation requirements when administering FMLA leave. A recent article does a good job of outlining these issues in more detail.

Friday, March 2, 2012

DOL issues "new" FMLA forms

You may have noticed that your FMLA notice and certification forms have an expiration date of December 31, 2011. No need to worry though. The DOL has issued "new" forms. These forms are virtually identical to the existing forms, but contain a February 28, 2015 expiration date. Here are links to the new forms:

  • Certification of Health Care Provider for Employee's Serious Health Condition (WH-380-E)
  • Certification of Health Care Provider for Family Member's Serious Health Condition (WH-380-F)
  • Notice of Eligibility and Rights and Responsibilities (WH-381)
  • Designation Notice (WH-382)
  • Certification of Qualifying Exigency for Military Family Leave (WH-384)
  • Certification of Serious Injury or Illness of Covered Servicemember - for Military Family Leave (WH-385)
Unfortunately, the new forms do not contain the proposed "safe harbor" language relative to disclosure of genetic information under the Genetic Information Nondisclosure Act ("GINA"). In order to avoid liability for disclosure of such information, the DOL has recommended inserting the following safe harbor language into medical request forms:
The Genetic Information Nondisclosure Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic Information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

March Madness is here again

The NCAA men's basketball tournament, better known as "March Madness," is set to kick off in about two weeks. And employers know what that means: lost productivity, distracted employees, and slower internet connections. Between monitoring brackets and following games online, employers should expect large segments of the workforce to be distracted during the last two weeks of the month.

Moreover, technological advances means that employees have more and more outlets to follow the tournament. This year, there are increased opportunities to monitor games, and even watch games live, on computers and smart phones.


Although employers should certainly hold employees to performance standards, this is probably a good time to cut them a little slack, within reason of course. On the other hand, employees should be reminded that they still have a job to due and need to exercise some discretion.