Comp Time and Ban the Box Bills Making Their Way to Congress

Posted April 18, 2017 by Megan DiMartino

Comp Time
The Fair Labor Standards Act (FLSA) states that non-exempt employees that work more than 40 hours in a workweek are to be paid overtime at time-and-a-half. But also under FLSA, a private-sector employer cannot provide an employee or allow an employee to choose comp time in lieu of overtime pay.

A few years ago, House Republicans proposed and passed a bill to allow comp time in lieu of overtime pay, but unfortunately it never made it to President Obama to sign. But the bill is back and is currently pending in both the House and Senate which would allow a private-sector employee to elect either the time-and-a-half pay or the time-and-a-half comp time for each hour of overtime worked. So keep a lookout for the potential passing of the new Working Families Flexibility Act of 2017!

Ban the Box
Ban the Box makes it unlawful for employers to ask about criminal background checks during the application process for a job, and many states and cities, like Philadelphia, are adapting to the law.

The Fair Chance Act, which was introduced by a bipartisan group in Washington recently, would prohibit Federal agencies and Federal contractors from asking applicants about their criminal history before they have received a conditional offer, among other reasons.

When screening new employees, make sure to:

CA Blog – Update: House of Representatives Allows for Comp Time in Lieu of Overtime Pay

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

HRCI & SHRM Pre-approved Crawford Advisors Webinar | Violence in the Workplace in 2017 – Are You Protected?

Posted April 14, 2017 by Megan DiMartino

Join Crawford Advisors’ Director of Crawford HR Services, Cindy Wagner, for this HRCI* and SHRM** pre-approved, complimentary, one-hour webinar as she discusses the current state of workplace violence.

Violence in our society does not only occur outside the workplace, as each year many employees are victims and perpetrators of violent acts. Homicides have become the third leading cause of fatal occupational injuries in the United States. Employers must endeavor to prevent the serious problem of workplace violence in an effort to protect employees and avoid potential employer liability.

Program content will address:

  • What is Workplace Violence
  • Techniques to Identify Potentially Violent Employees
  • Methods to Help Defuse Violent Situations
  • Workplace Security Policy
    • Provisions & Goals
  • Risk Reduction Measures

Webinar Details:

  • Thursday, April 27, 2017
  • 1:00 – 2:00pm EDT
  • No Cost to Attend
  • This webinar is open to all HR and Finance Professionals – but not to brokers, agents, TPAs and PEOs.

*The use of this seal confirms that this activity has met HR Certification Institute’s (HRCI) criteria for recertification credit pre-approval. This activity has been approved for 1 HR (General) recertification credit hours toward aPHR, PHR, PHRca, SPHR, GPHR, PHRi, and SPHRi recertification through HRCI.

**Crawford Advisors is recognized by SHRM to offer Professional Development Credits (PDCs) for SHRM-CP or SHRM-SCP. This program is valid for 1 PDC for the SHRM-CP or SHRM-SCP. For more information about certification or recertification, please visit shrmcertification.org.

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

FMLA in Conjunction with USERRA

Posted April 12, 2017 by Megan DiMartino

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) grants leave to employees who are in the armed forces much like the Family and Medical Leave Act (FMLA) grants leave to employees with members in the armed forces. They resemble each other in the following ways:

As both laws require employees to receive a certain amount of unpaid leave, USERRA requires employers to grant up to 5 years of unpaid leave to employees on active duty while FMLA requires employers to grant up to 12 weeks of leave for employees (up to 26 weeks of military caregiver leave).

  • Similar to the FMLA, employees who return from military duty are entitled – at a minimum – to be reinstated to their old job or an equivalent one.
  • The FMLA has similar benefits protections for employees who take FMLA leave as USERRA has for employees who take military leave.
  • Similar to USERRA’s discrimination provisions, the FMLA prohibits employers from discharging or otherwise discriminating against “any individual” – not just employees – for opposing a violation of the FMLA.

Other than the obvious amount of leave differences, there are a couple other distinctions:

  • All employers are required to comply with USERRA regardless of how many (or how few) employees they have.
  • There is no eligibility requirement under USERRA. Employees are generally eligible for military leave and job reinstatement regardless of how long or how many hours they have worked for the employer.

When an employee returns to work after military leave that is protected under USERRA, you have to determine if they are eligible for FMLA leave as if they were never gone. They should receive credit for the time spent on military leave for both the 12-month and the 1,250 hour requirements for FMLA eligibility.

Source: HR Daily Advisor | Coordinating FMLA with USERRA

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Maryland Fair Employment Practices Act and Reasonable Accommodation

Posted April 6, 2017 by Megan DiMartino

Recently, a Maryland Federal Court allowed a trial to proceed on a case where the plaintiff is accusing their employer of not fairly accommodating her needs under Maryland’s Fair Employment Practices Act (MFEPA) in which the employer failed to perform an individualized assessment to determine whether the employee – a qualified individual with a disability – was able to perform the duties of any available position, not just her own.

In the case, Townes v. Md. Dep’t of Juvenile Svcs., Townes is diagnosed with bipolar disorder and her psychiatrist recommended she move to another position that required less travel. It was pointed out that the company did have open positions available which required less travel and, per her psychiatrist, were suitable positions which Townes was qualified to perform. One was even available in Baltimore, MD where Townes lives. So the object was if the case presented was enough that a jury could conclude that the employer performed the individualized assessment required under MFEPA of Townes’s ability to perform the duties required of “a” job and not necessarily “the” job she occupied.

In the case Peninsula Reg’l Med. Ctr. v. Adkins, the court rejected the notion that “the job in question” means the job which the employee held at the time of the request for reasonable accommodation. So with that and one of the Maryland laws (COMAR 14.03.02.05(B)(5)), which includes reassignment to a vacant position as an example of a reasonable accommodation, it helped to reinforce the court’s conclusion that the employer was required to evaluate other open positions which the employee was qualified to fill.

The Townes and Adkins cases demonstrate how Maryland courts will interpret the MFEPA’s requirements like those found in Title I of the American’s with Disabilities Act and the Rehabilitation Act. Maryland employers should obviously learn from this and have good-faith conversations (individualized assessments) with their employees in determining how they can accommodate their needs in either their current position or through a qualified transfer.

Source: Mintz Levin Employment Matters Blog | Federal Court: Maryland Fair Employment Practices Act Requires Employer to Consider Jobs Other than Employee’s Current Job When Assessing Possibility of Reasonable Accommodation 

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Are Your Interview Questions Getting a Little Outdated?

Posted March 29, 2017 by Megan DiMartino

There are an endless amount of questions that an interviewer can ask a job applicant. But let’s ask you a couple questions first – Are these questions you’re asking pertinent to the open position at hand? Are they beneficial in collecting true information regarding your potential employee? If you’re asking the following questions, then the answer is most likely no:

  1. What’s your greatest weakness? – Everyone has weaknesses. A weakness is something you could be better at doing than you currently are and of course we can all strive to be better! This question can be intrusive and personal and doesn’t provide an answer that helps with the hiring decision.
  2. Where do you see yourself in five years? – This question can sometimes be a trap as interviewers want to determine if you’re a responsible adult with firm plans rather than a “child” who doesn’t have their mind made up yet. Life isn’t set in stone, so the next five years shouldn’t have to be either.
  3. What’s your greatest failure so far? – Goes right along with “your greatest weakness.”
  4. With all the talented candidates, why should we hire you? – As the interviewer, you’re the one that knows the ins and outs of the position so you’re the one who should know what to look for in a candidate. Practical questions should be asked about the work that is performed in the role in order to assess the candidate’s suitability for the job.
  5. What would your last boss say about you? – The integrity of their last boss isn’t at stake here, it’s about the applicant. Not all bosses are created equal and not every employee goes to work to please their boss, but to do their job and do it well.

These five questions have been a part of many interviews and also, whether you mean to or not, emphasize the unhealthy viewpoint that employers are mighty and job applicants are trivial.

So get rid of these out-of-date questions and replace them with these smart, thought provoking and realistic questions to use in your next interview:

  1. What can I tell you about this job or the company? – The candidate’s responses/questions will tell you a lot about their attitude level, their understanding of the role and business world in general, their priorities and their preparedness for the interview.
  2. How does this role fit into your career plans? – This will help determine if the candidate is just simply looking for a job (which may fit some roles) or if they’re serious about the position and their future with the company.
  3. As you think about yourself performing this job, what do you imagine will be the biggest challenges as you get started? – This question will make it clear if the applicant thought through the job requirements and their abilities and experiences to fill the role adequately.
  4. From what you understand about the job, which of your experiences at work or somewhere else do you feel will help you in this job? – This is a great way to obtain some evidence that the applicant can handle the position.
  5. If you take this position, how do you expect to tackle the new job and the projects we’re discussing? In a general way, what will be your plan of attack? – By asking this question you’ll get some insight as to how the candidate’s mind works and processes their potential new role.

Source: Forbes | Five Interview Questions To Stop Asking – And Five to Ask Instead

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

New Bill May Allow Parents to Use FMLA for Loss of a Child

Posted March 27, 2017 by Megan DiMartino

A new bill was recently introduced to the U.S. House of Representatives that would amend the Family and Medical Leave Act (FMLA) to permit parents the use of leave to mourn the death of a child.

The new bill, known as the Sarah Grace-Farley-Kluger Act, would add “because of the death of a son or daughter” to the list of FMLA entitlements and would allow parents to take up to 12 weeks of leave.

The bill has garnered bipartisan support. Republican Congressman Paul Gosar (AZ) is one of the bill’s co-sponsors and described the legislation as “commonsense” as a way to allow parents to cope with such a devastating loss and still remain productive at work.

“As a father of three amazing children myself, I know I can speak for everyone here today that our goal is to protect the rights of grieving parents who face the unthinkable pain of losing a child,” said Gosar. “Expanding the FMLA to cover parents coping with the devastation of losing a child is beyond reasonable and should have been included when the legislation was originally passed.”

“This commonsense, bipartisan bill is about what we are supposed to be doing in Congress – identifying problems and solving them together in a way that makes sense to help the people that we represent,” said Congresswoman Martha McSally (AZ). “Giving grieving parents the option for time off from work equal to that for parents who have given birth and adopted, simply makes sense to all of us who are in support of this bill.”

It is said that this legislation is less expensive and less controversial than requiring employers to provide paid family medical leave. President Trump is in support of some kind of paid family leave, but as of now this new bill could help move along the pending request for paid leave.

Should the Sarah Grace-Farley-Kluger Act not pass, it may be in the best interest of employers to consider adding such a policy to help create a more compassionate workplace.

Sources: The Employer Handbook by Eric B. Meyer | The FMLA may be amended to include leave for a parent to grieve the loss of a child

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Wellness Programs May Not Always Be Healthy for the Employer

Posted March 24, 2017 by Megan DiMartino

Fitness bands have become more and more popular over the years and you can bet that most of your employees are wearing some kind of device to track their biometrics. These devices can do everything from counting steps, to administering medical tests, to analyzing one’s quality of sleep. So this means employers could have firsthand access to employees’ personal information, but also to a legal trap.

One use for this biometric data, and probably the most prevalent, is to offer employees insurance premium discounts, bonuses, or other incentives to raise health consciousness or to get employees to reach a certain activity level. Offering such programs gives employers such information as activity levels, nutritional habits, and certain physical characteristics, which if not handled properly by the employer could lead to disability or discrimination claims.

As of right now, Illinois and Texas are the only two states to have enacted statutes that define specifically what constitutes biometric data; and only a few more states – Alaska, California, New York and Washington – have proposed legislation on the issue.

As an employer, what do you do?
Based off of the key provisions of the Illinois and Texas state laws, here are some guidelines for employers that are in possession of its employees’ biometric data:

  1. Always provide employees with written notice of biometric data collection and storage, and explain the reason for the collection and the length of time the data will be stored;
  2. Require employees to give written consent to the data collection;
  3. Protect the collected biometric information from disclosure unless the employee gives prior written consent to disclosure or the disclosure is required or permitted under state or federal statute, or in response to a warrant from law enforcement or a valid subpoena, or to complete a financial transaction requested by the employee;
  4. Protect stored biometric data in a manner that is at least as protective as the means used to protect other confidential information;
  5. As with health information in general, separate biometric data from other employee records, and ensure that company access to such data is limited to those with a legitimate need-to-know;
  6. Never sell, lease, trade, or otherwise profit from the collected data;
  7. Maintain and make publically available a written retention policy that requires permanent destruction of the data by the earlier of the date when “the initial purpose for collecting or obtaining” the data has been “satisfied” or three years after the employee’s last contact with the organization; and
  8. Keep abreast of cases that address the appropriate use of biometric data and its collection and handling. For example, this relatively recent case addressed whether requiring biometric screenings as part of a wellness plan violated the Americans with Disabilities Act.

Sources: Labor & Employment Law Perspectives | Could Wellness Programs Be Making Your Company “Sick?” The Potential Perils of Collecting Biometric Data About Employees

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Best Practices to Survive a DOL FMLA Investigation

Posted March 20, 2017 by Megan DiMartino

The Department of Labor (DOL) is cracking down harder on their on-site investigations of employers’ facilities and are placing an emphasis on recordkeeping compliance, “systemic” violations, and supervisors’ accountability in administering FMLA. So this means employers need to be prepared if the DOL decides to pay a visit to check FMLA, request documents, and interview supervisors and employees. Take notes and prepare yourself for such a situation.

FMLA Investigation Survival Tips
FMLA requires employers to maintain the following records for a 3-year period:

  • Basic payroll information and identifying employee data, including compensation paid to the employee and the manner in which it was determined, as well as all additions and reductions in pay. (Even employers with no FMLA-covered employees must keep these records.)
  • A record of dates when FMLA leave is taken by FMLA-eligible employees (time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave. However, leave so designated may not include leave required under state law or an employer plan that is not also covered by the FMLA.
  • The hours of FMLA leave taken by eligible employees if in increments of less than 1-full day.
  • Copies of all notices given by the employer to employees, as well as any received by the employer requesting FMLA leave. Copies may be maintained in employee personnel files.
  • Policies and benefits. Information stored in any form (paper or electronic) that explains employer policies and employee benefits and the payment for benefits.
  • Records of any dispute between the employer and an eligible employee regarding the designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.
  • Records clearly showing that exempt employees worked fewer than 1,250 hours in a 12-month period, if leave is denied.
  • FMLA-related medical records and documents pertaining to medical certifications, recertifications, or medical histories of employees or employees’ family members created for the purposes of the FMLA.

Unless there are any complaints or cause to believe violations, the DOL may inspect records once every 12 months.

What Does an On-Site Investigation Look Like?
Usually FMLA investigations will warn of their presence beforehand, but it’s not necessary that they do so. Employers need to have everything in order from documents to the person who will be able to handle the investigation at a moment’s notice.

The on-site investigation generally proceeds in the following steps:

  • An investigative conference,
  • A records review,
  • Employee interviews,
  • A final conference call, and
  • Communication of the results of the investigation.

Investigative Conference
The investigator can request a conference explaining how the investigation will proceed and the employer’s contact person can request that the investigator explain the laws that might be implicated and what locations and/or categories of employees will be involved.

The contact person should not ask the investigator if the investigation came about from an employee complaint or which employee complained. Best practice is to keep thorough notes of what the investigator asked and the answers that were provided.

Records Review
The investigator will want to review whether the employer is covered under FMLA so they will need to review FMLA records, payroll records, and other relevant documents. And if the investigation was brought on by an employee complaint then more records will be needed to determine if that employee meets the FMLA eligibility requirements.

The employer’s contact person should have all the documents readily available for the investigator and should have counsel available as well to consult with whether or not photocopies or records should be removed from the premises. They should also be diligent in recording which documents the investigator reviewed.

Employee Interviews
The investigator will most likely want to speak to employees regarding the employer’s FMLA practices, so let employees know that they may – but are not required to – speak freely with the investigator without a fear of retaliation. The employee should feel comfortable going into the interview so first ask if they’re willing to be interviewed, let them know that the employer is cooperating with the investigation, and don’t try to control what they say. Should they want to speak openly about it afterward then keep notes of what they said, but don’t question them about the interview.

Final Conference 
This is when the investigator will disclose to the employer whether they have uncovered any violations and, if so, advise the employer on how to correct them.

The Results
If counsel is not involved already, this would be the best time to do so. Counsel will help the employer decide whether to:

  • Present additional facts or evidence to the DOL;
  • Concur with the investigator’s findings and comply with his or her instructions;
  • Enter negotiations to reduce the amount owed (this process, called “conciliation,” may or may not work, depending on the flagrancy of the violation and whether your liability is clear or more of a close call);
  • or Contest the finding(s).

Should counsel find violations of the FMLA, then the employer should promptly change its policy and/or procedures to prevent anymore violations.

Sources: HR Daily Advisor | Mastering Tough FMLA Issues: Effectively Managing FMLA Investigations by the DOL

Links:
FMLA Forms, Guidance and Fact Sheet

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

HRCI & SHRM Pre-approved Crawford Advisors Webinar | Trump Healthcare Reform – Impact on ACA

Posted March 14, 2017 by Megan DiMartino

Join Crawford Advisors’ General Counsel and Vice President of Compliance, Patrick Haynes, for this HRCI* and SHRM** pre-approved webinar. Attorney Haynes will explore President Trump’s Healthcare Reforms and the potential impact on ACA regulations and compliance, in this complimentary, one-hour webinar.

 

Topics include:

  • Repeal/Replace Activities
    • Executive Order(s)
    • Reconciliation Activity to Date
  • Health Care Reform Proposals
    • Trump Campaign Proposals
    • Empowering Patients First (Price)
    • Patients’ Choice Act (Ryan, et al)
    • Other Proposals
  • Similarities/Broad Brush Conclusions
  • The “Dirty Dozen of ACA” & How They May Fare

Webinar Details:

  • Thursday, March 23, 2017
  • 1:00 – 2:00pm EDT
  • No Cost to Attend
  • This webinar is open to all HR and Finance Professionals – but not to brokers, agents, TPAs and PEOs.

*The use of this seal confirms that this activity has met HR Certification Institute’s (HRCI) criteria for recertification credit pre-approval. This activity has been approved for 1 HR (General) recertification credit hours toward aPHR, PHR, PHRca, SPHR, GPHR, PHRi, and SPHRi recertification through HRCI.

**Crawford Advisors is recognized by SHRM to offer Professional Development Credits (PDCs) for SHRM-CP or SHRM-SCP. This program is valid for 1 PDC for the SHRM-CP or SHRM-SCP. For more information about certification or recertification, please visit shrmcertification.org.

For more information contact info@crawfordadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

ACA Repeal & Replace – New House Bill Details

Posted March 7, 2017 by PHaynes

House Republicans just released the latest version of the ACA repeal and replace legislation.  The good news for many of our clients is that the Congress has listened to you and us as your brokers, consultants, agents and administrators.  Many of us didn’t see the wisdom in upsetting the employer-sponsored-healthcare market (150+ million Americans enjoy coverage from their employer) in order to expand the coverage pool for another 40 million Americans.  So, the tax exclusion for employer-provided plans remains in place.

Here are Eight Key Provisions of the newly released plans

Cadillac Tax delayed until 2025.  The challenge to repeal the Cadillac Tax will continue.  While this plan delays the Cadillac Tax from 2020 to 2025. Most predictions indicate that a significant number of group health plans would trigger the 40% excise tax by 2025 if there aren’t any adjustments made to the threshold.  [You may recall that the current Cadillac Tax threshold is $10,200 for an individual plan and $27,500 for a family plan].   Last year, more than 2/3 of the House of Representatives supported an end to the Cadillac Tax and 90 Senators voted to repeal the tax too.

Individual mandate and Employer mandate taxes (penalties) will be eliminated.

HSAs (Health Savings Accounts) will be expanded.  The current proposal would allow for HSAs (coupled with HDHP plans) to permit $6,550 in deposits for an individual and $13,100 in deposits for a family.  In short, eligible participants would be allowed to put a full year’s Out-of-Pocket-Maximum into their HSA each year.  ($6,550 and $13,100 are the OOPMaxes for 2017 HDHP-HSA plans).

This bill includes an advance-able, refundable tax credit to assist those individuals with buying health insurance.  Starting at $2,000 per person, a family could qualify for as much as $14,000 per year.  These credits begin to phase-out for individuals earning $75,000/year or at $150,000 for couples filing joint tax returns.  And, the credits disappear completely for folks earning $215,000/year (individual) and $290,000/year (married, filing a joint return).

ACA’s most popular provisions will be kept.  Folks with preexisting conditions and children up to age 26 will continue to enjoy coverage.  But, while someone with a preexisting condition can buy coverage, they must maintain continuous coverage in order to keep their coverage (thus discouraging folks from only buying coverage when they are sickest).  By doing so, they’ll avoid the 30% penalty for being late/sick entrants.

Stabilize State Insurance Markets – to support and stabilize state markets, this plan gives states a $100 billion fund, to be spent over a decade, to help lower-income people to afford insurance.  This fund could be used to lower out-of-pocket costs, or to promote access to preventive care, etc.

Medicaid wind-down.  While some may highlight this as “the expansion in reverse”, this is truly a rollback of the Medicaid expansions under PPACA.  This plan gives a per-capita allocation where states are given a set amount for the number of people in each category, including the disabled, elderly, pregnant mothers and childless adults.

Health Care FSA – before the Affordable Care Act was in place, Employers/Plan Sponsors chose what their annual limit was for the HCFSA that they offered.  The ACA capped that at $2,500 and then, indexing it for inflation, allowed it to increase to $2,550 and then $2,600 per employee per year.  This plan eliminates that cap and restores Employer choice.  Remember, because HCFSAs operate like a self-funded health plan, Employers are “on the hook” for the full annual election on day 1 of the plan year and they assume the risk that the employees will remain for the entire year and pay that election back via pre-tax payroll deductions.  So, as 2017 ends and you consider what limit you’d like to have/use in 2018 (beginning 1/1/2018) tread carefully before you allow a $5,000 or $10,000 annual limit. (Use-it-or-lose it would still seem to apply as would the ability to rollover up to $500 from one year to the next).

The next steps for this legislation include being marked up in both the House Ways & Means and Energy & Commerce Committees this week.  Which means, this could be voted on the House floor very soon.

Links