Paragon Business Services HR Advisor September Newsletter

September 2013

September is here! As students return to school and summer vacations come to an end, we prepare for change. We want to thank you for using the HR Support Center as your primary resource to obtain the latest employment law compliance updates.

HR Alerts

Notices of Exchanges and Subsidies – Virtually all employers, regardless of size, are required to distribute a Notice of Exchanges and Subsidies to each employee (regardless of part-time, full-time, or health plan enrollment status) by October 1, 2013.  Additionally, beginning on October 1, 2013, this notice must be provided to each new employee within 14 days of the employee’s commencement of employment.

There are two model notices available: one for employers who offer a company-sponsored health plan to some or all employees, and, one for employers who do not offer a health insurance plan.  Both of these model notices are available for download in the HR Support Center “Essentials” tab located under the “HR Forms” section.  We have also uploaded an FAQ document regarding this requirement in our Health Care Reform Section under the “Benefits” tab (the Notices are also available there).

The purpose of these Notice of Exchanges and Subsidies is to inform employees of the existence of Health Insurance Exchanges (also called Health Insurance Marketplaces) and potential federal subsidies available to them in 2014.  The Exchanges are government-provided virtual marketplaces intended to offer individuals and small groups “one-stop shopping” to find and compare private health insurance options.  Open enrollment for health insurance coverage through these Marketplaces begins October 1, 2013 and coverage is available beginning on January 1, 2014.

Medical Loss Ratio Rebate Checks – The Affordable Care Act requires health insurers to spend a specific percentage of collected premiums on health claim reimbursements and other activities to improve health care quality of members. If your insurance carrier spent more than permitted by statute on administrative costs, as opposed to reimbursement for medical services and activities to improve health care quality, your insurance carrier will be required to provide your group with a Medical Loss Ratio Rebate Check. Such checks must be mailed by August 1^st of each year for the previous calendar year. Should your organization receive a Medical Loss Ratio Rebate Check, please refer to our Medical Loss Ratio Rebate Checks: FAQs in the HR Support Center for instructions regarding your responsibilities for distribution as the plan sponsor. Simply click on “Benefits” then “Health Care Reform.” The FAQ document is listed under the “Forms, Templates and Guidelines” heading. Should you have additional questions, please contact your Human Resources Professional.

Social Media in the Workplace

Social Media, the means by which individuals may post personal messages, photos and videos to the web, has exploded as a means of electronic communication.  Whereas this efficient, ever-present medium has magnified the concept of in the moment connectivity and communication, its impact on workplace policies as well as how organizations conduct business correspondence and advertising has becoming encompassing.  The challenges that businesses experience with social media usage involve maintaining policies on what employees share in this very-public, very-difficult-to-delete-medium and yet adhere to the laws under the National Labor Relations Act (NLRA) as it relates to employee rights and communication on social media websites.

In 2012, approximately 94% of all businesses with a marketing department used social media, such as Facebook, Twitter and Google+, to increase brand awareness and to communicate with over one billion users on these sites. Technology is rapidly changing the way we conduct business, and social media has become the dominant form of communication both for business and personal use.

The business benefits of social media are numerous.  Social media, when utilized as a customer service tool allows consumers to conduct efficient research about organizations and their products and services.   Additionally, companies that incorporate inexpensive social media marketing campaigns benefit through the increase in their organization’s brand awareness.

The biggest challenges and balance in dealing with social media in the workplace is differentiating between effective communications and marketing methods versus vigilant retention of an organization’s security.  Complicating these matters further, the law governing social media in the workplace remains unsettled.

Few courts have addressed the legality of monitoring an employee’s social media use on a company- owned communication device, such as a laptop computer, tablet or “smart phone”.  Courts have been applying decades-old electronic communication laws, including the Stored Communications Act of 1986, for guidance on social media case litigation. Courts have been struggling with, and debating whether online posted messages, photographs and videos on social media sites are discoverable in court and whether this content is considered to be private and protected from disclosure.

Monitoring employees’ use of social media can be challenging and frustrating.  As these websites are often hosted on outside servers not controlled by an organization, the ability and rights of the company to monitor the online social media activities is somewhat stifled. In order to minimize the legal risks associated with the use of social media in the workplace and to ensure that company-owned property is being used appropriately, employers should develop an effective and legal social media policy for their employee handbooks that encompasses clear rules as well as communicates that the organization has no intent of violating Section 7 of the NLRA in its company policy on social media. Although there are several concerns to balance, key points to consider when drafting a social media policy include:

• Understand your employees’ rights to use social media under the National Labor Relations Act (NLRA).The National Labor Relations Board (NLRB) says that employees have the right to discuss work conditions on social media sites without retribution from their employers. The NLRB has released a series of guiding points in how employers may proceed in regulating employee social media use. This resource provides a good starting point for the creation and administration of social media policies.

• Focus on restricting employee behavior that is not protected under the NLRA.
  For example: Instruct employees not to disclose trade secrets; forbid postings that contain offensive language; and instruct employees not to post harassing or disparaging comments about other employees that could lead to discrimination claims (such as comments related to sex, race, disability or religion).

• Be prepared for discovery. Employers must anticipate that content on social media sites will be relevant in employment litigation. A social media policy should address discovery issues associated with requesting content from these sites and counsel must be prepared to discuss these issues with opposing counsel.

Though social media is an ever-evolving concept and will continue to expand its influence and presence in workplaces, employers can counter its negative impacts and encourage its advantages through thoughtful, compliant workplace policies.  To view a sample policy on social media in the workplace, go to the “Policy Library” under the “Essentials” tab in the HR Support Center.

Question & Answer

Q: One of our employees is in the Army Reserves. She was called to active duty recently; how should we proceed?

A: Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), when a member of the National Guard is called for active duty, the employer is required to provide the employee with an unpaid leave of absence for up to five (5) years. However, for exempt employees, the company must ensure they are paid for any week in which the employee performs any amount of company work without interruption in pay.  (This is a requirement under the Fair Labor Standards Act (FLSA) that applies to military service leave.)

Health Care Reform – Automatic Enrollment

The postponement of the employer mandate or “shared responsibility provision” of Health Care Reform until 2015 was a welcome reprieve for many employers.  It has led many organizations to browse through other Health Care Reform provisions and timelines.  In doing so, several employers have expressed concern regarding the “automatic enrollment” provision which many expected to be implemented in 2014.  However, it is important to note that in 2012, the IRS announced the indefinite delay of the automatic enrollment amendment to the Fair Labor Standard Act (FLSA).

The Patient Protection and Affordable Care Act (PPACA) amended the FLSA to require employers with more than 200 full-time employees to automatically enroll new full-time employees in one of the organization’s health benefit plans. The provision also requires the employer to provide adequate notice to the employee as well as the opportunity for the employee to opt out of the health plan.  For the purpose of this provision, a full-time employee is defined as one that averages 30 or more hours per week.

While the effective date of the automatic enrollment amendment was unclear in the original legislation, the US Department of Labor stated that it intended to issue automatic enrollment guidance prior to 2014. As a result, most experts anticipated a 1/1/2014 compliance date.  However, in 2012, the IRS issued a release stating that, “its automatic enrollment guidance will not be ready to take effect by 2014.”  Though, it is still possible that such guidance could be issued in the near future and the compliance date could be later in 2014 or beyond.  Many experts believe that a 1/1/15 compliance effective date is the most likely outcome, as the automatic enrollment provision will thus coincide with the employer mandate provision.

The federal government has stated its intention to provide at least a six-month implementation period for employers following the issuance of formal IRS guidance on specific Health Care Reform provisions.  Therefore, it is fairly safe to assume that once guidance is issued regarding automatic enrollment, organizations will have at least six months to implement the provision prior to the compliance date.

Employers are anticipating the automatic enrollment guidance to answer many of their inquiries regarding this provision.  Perhaps the most important question entails the default plan into which the employer is required to automatically enroll the employee.  Additionally, employers are curious as to how to handle employees who were automatically enrolled, but wish to make changes to their benefits plan.  For example, employers await guidance as to whether unhappy automatic enrollees will be allowed to drop coverage altogether, or whether their available option will permit them to switch from the default coverage option to other plan selections.  The timing requirement for such changes is another factor for which many employers will need to obtain clarification.

Automatic enrollment is one Health Care Reform provision that employers may place on the backburner for now, as there is clearly not enough information to begin the implementation process.  However, once the federal government provides direction with respect to automatic enrollment, employers with 200 or more full- time employees will need to consider implementation timeframes, internal resources and possibly outsourcing options.

Should you have questions regarding the automatic enrollment requirement or other Health Care Reform provisions, we recommend directing them to your Health Insurance Broker, Health Insurance Carrier, Human Resources Professional or Accounting/Tax Professional.

Tool of the Month:

Final Paycheck Laws (State-by-State)

The HR Pros have created a handy guide that contains State-by-State information regarding timelines for issuing final paychecks to terminating employees. To download the guide, go to the “Termination” tab under the “Quick Guides” section in the HR Support Center.

HR Cast of the Month

Getting Your Head Back in the Game after Summer Break

Summertime, with its relaxed and leisurely spirit, is a special time of year.  Many workplaces honor relaxed summer hours and dress codes.  Segueing from this casual mindset to a more focused, structured one is comparable to the adjustment that children make as they return to a new school year each fall.

On September 15th, be sure to visit the HR Support Center, and listen to this month’s HRCast to learn more about this topic.

HR Tip of the Month

Password, Please…

It’s no secret that many prospective job candidates have been asked to provide their social media account user names or passwords as a condition of employment.  Hiring managers should proceed with caution as, in 2012; lawmakers in five states (CA, DE, IL, MD. NJ and MI) passed legislation that prohibits an employee, applicant or student from having to reveal this information to an employer or academic institution.  In 2013, similar legislation has passed in eight additional states (AR, CO, NM, NV, OR, UT, VT and WA).  Legislation regarding employer accessibility to social media accounts is pending in other states; employers should, therefore, ensure they are compliant with state laws and not in violation of employee rights under the National Labor Relations Act (NLRA) in their hiring procedures.

Did you know?

155.2 Million

This is the current employee headcount of workers that are age 16 and older in the U.S. workforce.  Labor Day, which falls on September 2nd this year, celebrates the efforts of our workforce.

Quote of the Month

“For myself, I am an optimist–it does not seem to be much use being anything else.” –Winston Churchill

A Look Ahead

September 2: Labor Day

September 3: Skyscraper Day

September 4: Rosh Hashanah

September 8: Grandparents’ Day

September 9: Teddy Bear Day

September 11: Patriots Day

September 13: Yom Kippur

September 16: Stepfamily Day

September 17: Citizenship Day

September 21: World Gratitude Day

September 22: First Day of Autumn

Contact Us

Paragon Business Services, Inc.
7610 N Stemmons Frwy
Suite 600
Dallas,TX 75247

Additional Contacts
Phone: 866-444-4615
Fax: 214-951-1920
Legal Disclaimer: This message does not and is not intended to contain legal advice, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt

Paragon Business Services HR Advisor July Newsletter

July 2013

Happy birthday, America! We hope you enjoy a happy and fun-filled holiday this 4th of July.

HR Alerts

Question:  Next year, based on the new Health Care Reform regulations, may our company still require a 90-day waiting period before new employees become eligible to enroll in the health plan?

Answer: Yes, your company may still impose a waiting period of up to 90 days for new employees entering your group health plan. However, it is important to note that beginning with an employer’s first plan year starting on or after January 1, 2014, an organization may not use a waiting period that exceeds 90 days. This restriction applies to all employers, regardless of size, that sponsor a group health plan, as well as to both grandfathered and non-grandfathered plans. The proposed guidance does not permit the employer to wait to offer benefits until the first of the month following 90 days of employment. (However, many employer advocacy groups have submitted comments asking for the allowance of a “first of the month following 90 days” waiting period, so it is still possible that the federal government may institute a safe harbor to allow this calculation method in its final guidance.) As the proposed regulations currently read, the employer must count all calendar days when calculating the 90-day waiting period, including weekends and holidays. If the 91st day is a weekend or holiday, the organization may set a policy permitting coverage to be effective earlier than the 91st day of employment, but it may not make the effective date of coverage later than the 91st day. If your current health insurance plan utilizes a longer waiting period, it may need to be adjusted in 2014 in order to comply with the new regulations.

These adjustments may include the authorization of mid-month enrollments if your organization opts to use a 90-day waiting period. There are some exceptions to this rule when the employer is unable to determine if a new employee’s average hours will be sufficient to qualify for health plan participation. When this occurs, the plan may take a reasonable period of time to determine whether the employee meets the plan’s eligibility requirements, which may include a measurement look-back period of up to 12 months. The guidance for new, variable-hour employees and the applicable measurement look-back period for determining if their hours are sufficient to qualify for health insurance eligibility will be detailed in our next Health Care Reform E-Alert. In the meantime, if you have any questions regarding the 90-day waiting period requirement, please contact your health insurance broker, health insurance provider or Human Resources Professional.

Protecting Your Unemployment Account

Employers are often surprised at how easily a former employee can establish a successful unemployment claim. With respect to unemployment claims, the largest misconception among employers is that terminating an employee for substandard performance will disqualify the individual from receiving unemployment benefits. In most states, unless the employee’s behavior rises to a level of “misconduct,” the claimant will be deemed eligible for unemployment benefits. Thus, terminating an employee for “poor performance,” “incompetence” or “inability to perform the job” will almost always qualify the former employee for unemployment benefits.

To further complicate these unemployment claim determinations, not only does the employer have to demonstrate that the employee’s behavior constitutes “misconduct” as defined by state law, the employer also has the burden of proving that the claimant either knew or should have known that he could lose his job as a result of the behavior in question. Therefore, it is important to develop documentation that clearly illustrates these points to a reasonable person in order to successfully contest unemployment claims.

To assist organizations in proactively preventing the establishment of successful unemployment claims, here are a few best practices to consider prior to terminating an employee:

Provide the employee with a written warning regarding the misconduct prior to termination. Although no labor law requires a private, non-unionized organization to warn an employee prior to termination, doing so may assist the employer in defending a potential unemployment claim. Also, if employees have been led to believe that certain steps will occur prior to termination, the employer should make a good faith attempt to follow those steps, or else risk losing the unemployment claim.

Distribute an Employee Handbook and obtain signed acknowledgment forms. Employers have a much better chance of successfully defending an unemployment claim if they can cite the specific Employee Handbook policy that was violated by the former employee. Distributing an Employee Handbook is an excellent means of demonstrating how employees were made aware of the policy, and of the consequences of noncompliance with workplace rules and guidelines.

Investigate all harassment, discrimination, wage and hour, and other serious workplace complaints. In most states, if an employee resigns with “good cause,” he will be eligible for unemployment benefits. If the individual can substantiate that he complained of a serious workplace concern, but the employer took no effective action to address the allegation or retaliated somehow against the claimant, the former employee is generally awarded unemployment benefits.

Remember the “reasonable person” standard. This is a common standard used when making unemployment decisions. Therefore, always consider whether a reasonable person would terminate an employee given the present circumstances prior to making the termination decision.

Treat employees fairly and consistently with respect to termination decisions. Remember, the state personnel processing claims are themselves employees, not employers, and they naturally have opinions of what they consider fair treatment. So whether right or wrong, it is important to keep this in mind when terminating employees. Additionally, past practices for a situation bearing similarity to other workplace policy violations should be taken into consideration. It will be more difficult for a former employee to successfully make an unemployment claim if the employer has documented evidence that an employee’s separation was conducted in line with company policies and past practices.

Hopefully these best practices will help the business to take some proactive measures to protect the company’s unemployment account prior to terminating employees. Of course, there are times when the potential cost of an unemployment claim is insignificant when compared with the financial, emotional or opportunity cost of continuing to employ the individual. Therefore, there are certainly strategic elements to consider in conjunction with these best practices when making termination decisions.

Question & Answer

Non-Discretionary Bonuses for OT

Q: Is an employer required to pay an employee while he or she is out of the office on jury duty?

A:  It depends on the state in which your organization is located. Some states, and specifically some local jurisdictions, mandate payment for a portion of or all of the time that the employee spends in jury duty. If your state or jurisdiction does not mandate payment to employees who have been on jury duty, and you offer compensation to your employees for a portion or all of their jury duty, it is imperative that your practice is consistent among all employees.

Hiring Paperwork and Candidate Recruitment – Getting New Hires Onboard

The hiring and recruitment process is a time consuming one, but it is essential that an employer includes all of the crucial steps involved in getting a new employee acclimated to the organization. In order to ensure a smooth transition from candidate to newly hired employee, an employer must ensure that the organization initially searches to fill a specific role or to find a prospective candidate that will be able to fit that request. Some of the key aspects involved in the hiring process are: conducting a thorough recruiting effort, ensuring potential candidates are appropriately narrowed down, and providing a formal employment offer with a competitive compensation and benefits package.

Once the candidate has accepted the offer and has negotiated a starting date and rate of pay, the employer must move expediently in order to fulfill the onboarding tasks. If they have not previously been completed, background and reference checks should now be conducted. It is important to state in the offer letter that the job offer is contingent upon the successful completion of applicable background checks and/or a passed drug screening test.

Other hiring paperwork should be completed by the newly hired employee as soon as possible. The I-9 Form must be completed within three business days of the starting date of employment, as it is mandatory that the employer obtains the candidate’s proof of identity as well as eligibility to work in the U.S.

The W-4 Form, Direct Deposit Form, Emergency Contact Form, benefits paperwork and other relevant new hire paperwork should be completed on or before the first day of work. Utilizing a new hire checklist as well as a new hire orientation template will help ensure that the employee is being onboarded in a smooth, structured manner and will help verify that the employee is in receipt of tools, equipment and other necessary company property.

The hiring and recruiting process is a tedious and at times a time and financially-consuming one for employers. Advertising the position and receiving applications from viable candidates is a key step in finding the right fit. Employers who utilize thoughtful measures in understanding their organizational needs, identify a positive cultural match between employer and prospective candidates, and utilize a consistent means of obtaining candidate data will lay a foundation of positive recruitment. Ensuring that a position boasts an enticing compensation and benefits package, including working remotely and flexible work weeks/schedules, may make the difference between a job acceptance and rejection.

Finally, once the candidate begins his or her role, those first few weeks on the job are the most crucial timeframe in the employee’s employment with the company. As the new employee becomes acquainted with the organization and his or her respective department and role, the organization will enjoy the positive outcome of this formative timeframe that impacts the employee’s acclimation as well as his or her longevity with the organization. Studies have found that the more devoted an organization is in crafting a thorough onboarding program, the greater likelihood that the employee will remain employed with the company.

Though the recruiting, hiring and new hire orientation processes are time-consuming, investing energy into a thorough, streamlined onboarding procedure will provide a return on investment when the results are happy, long-term company employees.

Tool of the Month:

Notices of Exchanges and Subsidies FAQ: The US Department of Labor has released its Model Notices for an important, upcoming employer Health Care Reform requirement. Virtually all employers, regardless of size, are required to distribute a Notice of Exchanges and Subsidies to each employee (regardless of part-time, full-time or health plan enrollment status) by October 1, 2013. Also, beginning on October 1, 2013, this notice must be provided to each new employee within 14 days of the employee’s start date. There are two model notices available, one for employers that offer a company-sponsored health plan to some or all employees, and one for organizations that do not proffer an employer-sponsored health insurance plan.

Many find these Notices confusing, so the HR Pros have created a handy FAQ document that will explain everything you need to know about the Notices. To download the FAQ or the Notices, go to the “Health Care Reform” tab under the “Benefits” section in the HR Support Center.

HR Cast of the Month

Employers have the ability to positively influence their community through relationships with charitable organizations. Both large and small organizations may support charitable organizations and make it a simple and attractive practice to encourage its employees to do the same. Workplace giving is an easy and efficient way to make tax-deductible donations to charities through payroll contributions. Together with your company, you can partner to benefit your community by providing a much-needed stream of revenue to charities.

On July 15th, be sure to visit the HR Support Center, and listen to this month’s HRCast to learn more about this topic.

HR Tip of the Month

If your organization utilizes temporary or “on call” workers, or if a regular employee with your company has a role that is defined as having “on call” duties, you should ensure that consistent procedures regarding “on call” employees have been incorporated into the employer’s practices. An employee who is required to remain on the employer’s premises is working while “on call.” An employee who is required to remain “on call” while away from the office or after regular business hours, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while “on call.” Any constraints on the employee’s freedom when he or she is “on call” could require this time to be compensated.

Did you know?

3

Minnesota will soon become the third state with a “Ban the Box” law that applies to both private and public employers, joining Massachusetts and Hawaii. “Ban the Box” refers to laws prohibiting the box on job applications that prospective employees are asked to check off if they ever have been convicted of a crime.

Quote of the Month

”To be successful, you have to have your heart in your business, and your business in your heart.” – Sr. Thomas Watson

A Look Ahead

July:
National Park and Recreation Month
National Hot Dog Month
National Eye Injury Prevention Month
National UV Safety Month

June 1:   International Children’s DayJune 2:   National Cancer Survivors DayJune 5:   World Environment Day

July 1: Canada Day

July 1: National Postal Worker Day

July 4: Independence Day

July 5: Caribbean Day (United States)

July 6: National Fried Chicken Day

July 8: Liberty Bell cracked in 1835

July 14: Bastille Day

July 17: Sewing machine patented in 1790

July 21: National Ice Cream Day

July 23: World Youth Day

July 24: Amelia Earhart Day

July 24: Cousins Day

July 26: Aunt and Uncle Day

July 28: National Milk Chocolate Day

July 28: Parents’ Day

Contact Us

Paragon Business Services, Inc.
7610 N Stemmons Frwy
Suite 600
Dallas,TX 75247

Additional Contacts
Phone: 866-444-4615
Fax: 214-951-1920
Legal Disclaimer: This message does not and is not intended to contain legal advice, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt

Paragon Business Services HR Advisor June Newsletter

June 2013

Welcome!

Summer is just around the corner! Take a moment to look ahead and see what is in the forecast for upcoming labor law development, enacting workplace summer hour programs and tips to ensure that your business is in compliance.

HR Alerts

US Appeals Court Strikes Down NLRB Notice: On May 7, 2013, the United States Court of Appeals for the District of Columbia struck down the National Labor Review Board’s (“NLRB”) notice rule, which requires private sector employers under its jurisdiction to display a large poster notifying employees of their rights under the National Labor Relations Act, because: (1) it violates employers’ rights to engage in non-coercive speech; and (2) the tolling provision of the poster rule, which tolled the six-month limitations period for filing unfair labor practice charges, was not supported by any authority. The NLRB’s August 2011 rule made the failure to display the notice an unfair labor practice under the NLRA. Unless and until the United States Supreme Court says otherwise, employers have no obligation to post notices of employee rights under the NLRA.

Notice of Exchanges and Subsidies: The US Department of Labor has released its Model Notices for an important, upcoming employer Health Care Reform requirement. Virtually all employers, regardless of size, are required to distribute a Notice of Exchanges and Subsidies to each employee (regardless of part-time, full-time or health plan enrollment status) by October 1, 2013. Also, beginning on October 1, 2013, this notice must be provided to each new employee within 14 days of the employee’s start date.

There are two model notices available, one for employers that offer a company-sponsored health plan to some or all employees, and one for organizations that do not provide an employer-sponsored health insurance plan. Both of these model notices are available for download in the HR Support Center “Essentials” tab under the “HR Forms” section.

The purpose of the Notice of Exchanges and Subsidies is to inform employees of the existence of Health Insurance Exchanges (also called Health Insurance Marketplaces) as well as potential federal subsidies available to them in 2014. The Exchanges are government-provided virtual marketplaces intended to offer individuals and small groups “one-stop shopping” to find and compare private health insurance options. Open enrollment for health insurance coverage through the Health Insurance Marketplaces begins October 1, 2013 and coverage is available beginning on January 1, 2014.

Notice of Exchanges and Subsidies: Deadline Published

Employers have an important and far-reaching compliance deadline on the horizon. Virtually all organizations, regardless of size, are required to distribute a Notice of Exchanges and Subsidies to each employee (regardless of part-time, full-time, or health plan enrollment status) by October 1, 2013. Additionally, beginning on October 1, 2013, this notice must be provided to each new employee within 14 days of the employee’s start date.  Whether or not your state has opted to set up a State Exchange, participate in a State-Federal Partnership Exchange, or default to a Federally-Run Exchange, each employer is still required to provide this notice.

The U.S. Department of Labor recently published model notices for this purpose.  There are two model notices available: one for employers who offer a company-sponsored health plan to some or all employees and one for organizations who do not offer a health insurance plan.  Both of these model notices are available for download in the HR Support Center “Essentials” tab under the “HR Forms” section.

The purpose of this notice is to inform employees of the existence of Health Insurance Exchanges (also called Health Insurance Marketplaces) as well as the potential federal subsidies available to them beginning in 2014. The Exchanges are government-provided virtual marketplaces intended to offer individuals and small groups a “one-stop shopping” resource in order to find and compare private health insurance options. Open enrollment for health insurance plans through these Marketplaces is scheduled to begin on October 1, 2013 and coverage is anticipated to be available beginning on January 1, 2014.

If your company has more than 50 full-time equivalent employees, it is time to carefully consider how your organization intends to comply with the Employer Mandate or whether it determines that non-compliance is the best strategic option. Whether your organization will face Employer Mandate penalties depends on whether your current plan design and employer contribution meet the minimum requirements, and whether any of your employees will be eligible for a federal premium subsidy. Your decision in this regard will affect the information contained in this notice.

Both of the model notices include a section that the employer must complete. If your company does not offer health insurance coverage, and is certain it will not be offering it in 2014 as well, it may wish to go ahead and begin distributing these notices. However, if your organization does offer health insurance, it may wish to wait until closer to the deadline for distribution, as the company may have attained more information regarding the parameters and costs of the company-sponsored health plan at that time.

Additionally, it is necessary that your organization has a resource available to answer employee questions arising from these notices.

For more information, we suggest you review the “Notice of Exchanges and Subsidies: FAQs” document in the HR Support Center. To download, visit the “Benefits” tab, under the “Health Care Reform” page.

Should you have questions regarding the Employer Mandate or this notice requirement, please reach out to your Health Plan Broker or your Human Resources Professional.

Question & Answer

Non-Discretionary Bonuses for OT

Q:  I heard that we have to include overtime in our bonuses payments for nonexempt employees. Is this true?

A:  Yes, this is true if the bonus is a non-discretionary bonus in accordance with the federal definition contained in the Fair Labor Standards Act (FLSA).

A non-discretionary bonus is one that is governed by a policy or is based on performance. Generally, the incentive is considered non-discretionary if the employer sets the standards that are required to receive a bonus based on meeting job or assignment-specific criteria. Some examples of non-discretionary bonuses are incentive plans, commission plans, shift differentials, productivity bonuses and attendance bonuses.

Conversely, elective bonuses are those that are provided completely at the discretion of the employer at irregular intervals. The employee generally has no expectation of receiving such a bonus. For a bonus to be considered discretionary, the incentive amount, its eligibility requirements, as well as its timing are not disclosed in advance, as they generally are not known. Some good examples of discretionary bonuses are a holiday bonus or a one-time bonus for an employee in recognition of exceptional job performance.

Non-discretionary bonus amounts must be included in the calculation of the regular rate for overtime compensation purposes. However, it is important to note that it must be included in the regular rate for each pay period in which the bonus was based, not on the pay period in which the bonus is paid. For example, for a quarterly attendance bonus, when the bonus amount is ascertained, the employer is required to recalculate the regular rate for each workweek in the bonus period and pay additional overtime. The recalculation of the regular rate for overtime purposes is only required for workweeks in the bonus period in which the employee received overtime pay. Here is a sample calculation:

Tommy (an hourly, nonexempt employee) earns a quarterly attendance bonus of $200. During that quarter, Tommy worked 480 straight time hours and 200 overtime hours in total. The bonus causes Tommy’s regular rate to increase by $.29/hour ($200 bonus divided by 680 total hours). For every overtime hour Tommy has worked during the quarter, he must be paid an additional 14.5 cents (half time rate). The portion that must be added to the bonus to account for overtime is $29 (200 overtime hours x 14.5 cents). Therefore his bonus including the overtime premium becomes $229.

This is an area of the law that many employers fail to understand and consequently fail to compensate employees correctly. Should you have questions regarding such calculations, please contact your Human Resources Professional.

Sexual Harassment: Don’t Lean into My Cubicle Like That!

Sexual harassment is, by definition, a type of discrimination which includes gender-based harassment, bullying, or coercion of a sexual nature.  Any type of unwelcome or unwanted sexual advances, requests for favors, or other conduct that is used as a condition of employment may be considered unlawful sexual harassment. If a supervisor uses sexual favors as a basis of employment decision-making, whether between same-sex or opposite-sex individuals, this too may be considered sexual harassment in the workplace.  It is imperative that an employer has a thorough workplace policy in place which communicates the company’s zero-tolerance of any type of harassing  behavior, as well as what employees may do if they become victims of harassment. Employers who are proactive in training employees and supervisors, and regularly enforce the organization’s stance against harassing and intimidating behavior in the workplace generally have reduced exposure to harassment-related liability.

Harassment may occur between colleagues, a supervisor and a subordinate, or between a client, vendor or associate of an organization and its employee. Providing adequate training to employees and management staff will ensure that the organization is consistent in its handling of harassment complaints, applies disciplinary action when warranted, and is prepared effectively for the prevention of sexual harassment in the workplace. Employers who communicate to their staff the importance of maintaining a harassment-free environment will promote a productive workplace environment as well as help keep the employer out of court.

Though there are currently only three states that mandate supervisory employees to be trained on Sexual Harassment (California, Connecticut and Maine), it is suggested that all employers  incorporate a training program for their employees to become familiar with the organization’s policy on anti-harassment, as well as what types of behavior constitute harassment.

Investing the time in the workforce and implementing a workplace anti-harassment policy will help employees learn how they can help prevent harassment from occurring in the workplace. Supervisors who partner with the Human Resources Departments on the enforcement of Anti-Harassment policies as well as effectively communicate intolerance for unlawful sexual harassment in the workplace are more likely to prevent sexual harassment from taking place. Upon receiving a complaint of harassing behavior, it is also critically important to effectively and consistently conduct a harassment investigation in order to resolve the complaint.

Tool of the Month:

Health Care Reform Acts Summary Sheet: We know Health Care Reform can be very confusing with lots of new terms and deadlines. We’ve created a handy document for your reference. You will find explanations and deadlines for:

• Individual Mandate
• Employer Mandate
• Notice of Exchanges and Subsidies
• Reporting Requirements
• FAQs
• and more

To download the Health Care Reforms Acts Summary Sheet, visit the HR Support Center, “Benefits” tab on the “Health Care Reform” page.

E-Verify

U.S. law requires companies to employ only individuals who may legally work in the United States – either U.S. citizens, or foreign citizens who have the necessary authorization to be employed in the United States.E-Verify is an Internet-based system that allows businesses to efficiently determine the eligibility of applicants or employees to work in the United States.On June 15th, be sure to visit the HR Support Center, and listen to this month’s HRCast to learn more about this topic.

HR Tip of the Month

Workplace Summer Hours:
Balancing Workplace Productivity and Beach Outings before 6:00 pm

A summer hours schedule can be a way for employees to enjoy the balmy weather of the summer months, while maintaining productivity. Many organizations are offering flexible work arrangements, such as summer hours, which may enhance work-life balance and employee retention rates. Summer hours are different from a flexible work program in that all employees enjoy the benefit; however, the criteria in implementing summer hours are similar to that of a flexible work program.The following considerations should be taken into account when developing a program:

• Timing. Determine the start and end dates of your program.
• Schedule. There are a number of different options that can be implemented, including:
  • One day off per week
  • Early closing on Friday
  • Change in core hours/scheduled shifts
  • Compressed work week

• Organizational goals. Your summer hours program must align with the company’s objectives and goals in order to be successful.
• Exceptions. There may be times when all employees, or just a few, will need to forego their summer hours in order to accommodate business needs.
• Think outside the box. There may be a non-traditional work hours program that will enhance your business and provide employees some temporary flexibility in their summer schedules.
• Evaluation. Let employees know, upon implementation, that the program will be evaluated and may be changed at any time due to business demands.

The benefits of a flexible work schedule program can be great, but the program should be carefully planned out prior to its implementation.

Did you know?

75%

Approximately 75% of all employers currently conduct online searches on job applicants and potential candidates independent of the formal reference checks performed on candidates who have been selected as finalists for a position.

Quote of the Month

“Motivation is the art of getting people to do what you want them to do, because they want to do it.” – Dwight D. Eisenhower

A Look Ahead

June:
Dairy Month
Safety Awareness Month
Children’s Awareness Month
Effective Communications Month

June 1:   International Children’s DayJune 2:   National Cancer Survivors DayJune 5:   World Environment Day

June 6:   D-Day (World War II D-Day invasion of Normandy, France, 1944)

June 7:   National Donut Day

June 8:   World Ocean Day

June 14:  Flag Day (United States)

June 14:  World Blood Donor Day

June 16:  Father’s Day

June 21:  First Day of Summer

June 21:  World Music Day

June 23:  International Olympic Day

June 26:  International Anti-Drugs Day

June 27:  National HIV Testing Day

Contact Us

Paragon Business Services, Inc.
7610 N Stemmons Frwy
Suite 600
Dallas,TX 75247

Additional Contacts
Phone: 866-444-4615
Fax: 214-951-1920

Legal Disclaimer: This message does not and is not intended to contain legal advice, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt

Paragon Business Services HR Advisor May Newsletter

May 2013

Welcome!

May is here! We want to thank you for using the HR Support Center as your primary resource to obtain the latest employment law compliance updates.

HR Alerts

USCIS Revises Employment Eligibility Verification Form I-9. Effective May 7, 2013, employers must use the new Form I-9 (Rev.03/08/13). The Form I-9 Instructions and Form I-9 document are available in the HR Support Center, under the Essentials Tab.

It’s Officially Tube Top, Capri Pants and Exposed Toes Season!

Regardless of the geographic region in which you reside, it seems as soon as the flowers have begun to bloom and the days become gradually longer, the air is filled with an underlying excitement of the coming warmer summer season. Many workplaces experience another predictable annual occurrence: the metamorphosis of employees’ wardrobes and the need to revisit the Company’s dress code.

Some employers have established summer hours with compressed or flexible work weeks, incorporating a more casual dress code as well. It is recommended, however, that employers revisit the workplace attire policy with employees prior to the start of the warmer weather. This provides an opportunity for an employer to reinforce the organization’s standards on personal appearance, as well as identifying, specifically, the types of garments that are permissible and those that are prohibited.

Before the halter tops and the shoes more appropriate for the white sands of Waikiki beaches emerge within the walls of your business, it
is recommended that employers are proactive in their approach and clearly communicate their expectations regarding this topic.

Outside of infringing on employees’ religious or cultural attire, as well as any workplace safety requirements, employers should be positioned to communicate the specific parameters of the summer months’ dress code. Will a relaxed dress code be implemented as soon as the weather becomes warmer, or during a set timeframe (such as Memorial Day through Labor Day)? Will employees be required to continue the regular dress code when customers and clients visit the office? Will a relaxed dress code be incorporated throughout the entire week or just on Fridays? These are all questions that may need to be addressed in the dress code policy. It is recommended, too, that employees receive communication, (perhaps in the form of a written memorandum) addressing permissible attire as well as garments that are expressly prohibited to be worn in the workplace. Asking employees to sign off physically or electronically on this reminder is suggested in order to verify that your employees have acknowledged receipt of the personal appearance policy.

By clearly addressing the expectations of workplace attire, employers will promote their requirements regarding employee appearance and ensure that the policy is communicated consistently to all employees. Such communication ensures that employees comprehend the Company’s position regarding dress code requirements as well as the consequences that will result if employees fail to adhere to the Dress Code policy.

Paying for Travel Time or Mileage
Q:Should employers pay for employees’ driving time or reimburse them at the IRS mileage rate?

A: Although private employers in most states are not required by law to reimburse employees for mileage pertaining to work-related private vehicle use, many find it beneficial to do so. Businesses enjoy a significant tax break for mileage and vehicle maintenance reimbursement, and many companies find that offering this perk helps them attract and retain talented employees. However, if non-exempt employees are driving as a part of their work duties, it is imperative to ensure that they are being compensated during the time that they are traveling from one work location to another, as they are engaged in job-related duties. Whatever policies your organization adopts in this regard, it is important to ensure that you are consistent in your practices so that any employee who travels as a part of his or her work duties is compensated fairly as well as in line with the Fair Labor Standards Act (FLSA) and applicable state law.

“But it’s my Cousin’s Wedding”: Managing Vacation Requests

It is often difficult to strike that perfect balance between allowing employees some degree of flexibility to take vacations, while ensuring adequate coverage in the workplace. Employers also find it difficult to juggle multiple vacation requests around popular vacation times. Below we have listed a few tips, suggestions and best practices to ensure the vacation plan works well for both the employer and its employees.

If your business is highly seasonal in nature, you may wish to enact a policy requiring employees to use all or a specific amount of vacation during the slow months. For example, if your workflow significantly decreases in the first quarter of the year, you may consider stating in your vacation policy that employees are required to use at least half of their annual vacation allotment during this time period. The same holds true for limiting or prohibiting the use of paid vacation during traditionally busy seasons.

It is also suggested to consider ahead of time the procedure to determine which employee(s) will be granted time off when multiple vacation requests are submitted for the same dates. Some methods employers incorporate to make these difficult decisions are approving vacation leave on a “first come, first served” basis or using seniority as the deciding factor.

Employers are permitted to designate vacation time based on the needs of the organization. Employers that close for certain weeks during the year often use this method of vacation management. For example, if the company closes for the week between Christmas Day and New Year’s Day, the company may require all employees to save five days of vacation time to use during this period.

With respect to notification of vacation time requests, many employers request a specific amount of time, such as a minimum of two weeks’ notice of submission for time off from work. Other employers prefer to plan vacations on a yearly basis and ask employees to submit all vacation requests for the calendar year in January.

Whatever methods the organization applies for handling vacation requests, we recommend that the management team clearly communicates the company’s policy and reasoning behind it to employees so they may plan their vacations accordingly. Clear communication and consistent application of the vacation policy are crucial to avoid potential morale problems or discrimination charges based on the administration of the organization’s vacation policy.

Tool of the Month:

Travel Time Guide

Employers should understand and apply proper determinations impacting compensable “travel-time” for non-exempt employees who travel as a part of their job duties. Under the Fair Labor Standards Act (FLSA) a non-exempt employee must be paid for all hours the employee is “suffered or permitted to work.” Utilize the Travel Time Guide to understand compensable time in the following circumstances:

Home to work travel

• Travel during the workday/in-town
• Overnight travel
• Same day travel/out of town

HR Cast of the Month

Conducting Employee Terminations on the Phone vs. In-Person

Employee terminations are never an easy process. At times it may be appropriate to conduct a termination meeting over the telephone rather than in-person. Depending on the circumstances, as well as preserving the departing employee’s dignity and taking safety into consideration, at times a termination conducted over the telephone rather than in-person may be the best strategy for a particular situation.

On May 15th, be sure to visit the HR Support Center, and listen to this month’s HRCast to learn more about this topic.

HR Tip of the Month

New Hire Reporting Processes – Getting Your Employee on Board

As an employer, you and your hiring managers know the extensive process of hiring new employees. New Hire reporting is a process by which an employer reports information on newly hired employees to a designated state agency following the date of hire. As an employer, you play a key role in this important program by reporting all your newly hired employees to your state. It is important to ensure that either you or your payroll provider is performing this task each time you hire a new employee. State agencies operating employment security, child support enforcement and workers’ compensation programs have access to the state New Hire information to enforce the laws and detect and prevent erroneous benefit payments.

Did you know

87%

Only 14% of employers cite a credit check as the most important factor in a hiring decision; however, 87% of employers also cited previous work experience as the most important criteria amongst other factors during hiring decisions.
Source: CNN Money, March 2013

Quote of the Month

“Imagination is everything. It is the preview of life’s coming attractions” –Albert Einstein

A Look Ahead

May 1st – 31st:

• Asthma & Allergy Awareness
• Month Skin Cancer Awareness Month
• Breathe Easy and Clean Air Month
• Asian/Pacific American Heritage Week (1st Week)
• Teacher Appreciation Week (1st Week)
• National Police Week (3rd Week)

May 1: May Day (Declared by President Dwight D. Eisenhower as Law Day)

May 1: Worthy Wage Day (Child Care Providers)

May 2: Brother and Sisters Day

May 5: Cinco de Mayo

May 7: National Teacher’s Day

May 8: National School Nurse Day

May 8: National Receptionist Day

May 12: Mother’s Day

May 17: National Defense Transportation Day

May 18: Armed Forces Day

May 22: National Maritime Day

May 27: Memorial Day (observed)

May 29: Former President John F. Kennedy (JFK)’s Birthday (1917)

May 31: World No Tobacco Day

Contact Us

Paragon Business Services, Inc.
7610 N Stemmons Frwy
Suite 600

Dallas,TX 75247
Additional Contacts
Phone: 866-444-4615
Fax: 214-951-1920

Legal Disclaimer: This message does not and is not intended to contain legal advice, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

Paragon Business Services HR Advisor April Newsletter

April 2013

Welcome!

It is April! Let’s embrace the colorful seasonal changes while also staying organized and updated through the latest content available to you in the HR Support Center.

HR Alerts

IRS Tax Filing Deadline.The Internal Revenue Service (IRS) tax return filing deadline is April 15, 2013 for 2012 tax forms.

OSHA Summary Posting.We have almost reached the end of the 2013 OSHA Summary Posting Period. The Occupational Safety and Health Administration (OSHA) requires certain employers to post the OSHA Form 300A in a conspicuous workplace location from February 1, 2013 through April 30, 2013.
This form is a summary of the total number of job-related injuries and illnesses that occurred in 2012. Employers with ten or fewer employees during all of the last calendar year (2012), or businesses that are classified in a specific low-hazard industry are generally not required to post OSHA Form 300A. However, an organization subjected to this requirement must post the OSHA Form 300A, even if the employer had no reportable injuries/illnesses in the prior year. In addition to the posting requirement, the employer must provide a copy of the report to any employee with no fixed work site or no access to the posting location.

USCIS Revises Employment Eligibility Verification Form I-9.As a reminder, in early March 2013, the U.S. Citizenship and Immigration Services (USCIS) published a revised Employment Eligibility Verification Form I-9 for use. All employers are required to complete a Form I-9 for each employee hired in the United States. Employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file. Effective 03/08/13: Employers should begin using the newly revised Form I-9 (Rev. 03/08/13) for all new hires and re-verifications. Employers may continue to use previously accepted revisions (Rev.02/02/09) and (Rev. 08/07/09) until May 7, 2013. After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13). The Form I-9 Instructions and Form I-9 document are available in the HR Support Center, under the Essentials tab.

Going for a Test Ride in the Workplace: Independent Contractors

Independent Contractors have been a common addition to many organizations for years, but have increased in use over the past several years as companies have shed their staff headcount. Independent Contractors are secured either directly and work in a 1099 capacity or they are brought into an organization via the route of a third party staffing or placement agency.

The use of Independent Contractors is cost effective for organizations as the employer is not burdened with withholding payroll taxes, making matching payroll tax contributions, or covering the cost of the employee’s health and retirement benefit plans. Additionally, this is a great opportunity to see if an Independent Contractor will fit in with the organization’s culture as well as whether the individual will be successful in the role for which he or she was contracted. Independent Contractors who find success in their roles and fit in well with a company’s culture hold an advantage should they be hired to become regular employees of an organization as their learning curve is substantially shorter than that of an individual who is hired into the company from the outside. The Independent Contractor has already had an opportunity to become acquainted with the organization’s industry as well with the dynamic of its employees.

Additionally, opting to allow an Independent Contractor’s contract to expire if he or she is not a good fit for the organization is a simpler task than terminating a regular employee of the company. Some disadvantages, though, are that the employer has substantially less control over an Independent Contractor. In addition, an Independent Contractor will not have the loyalty to the organization as would a regular employee. This can be problematic when employers need to strategize for succession planning and cross-training. With an Independent Contractor, employers do not have the same incentive to retain and train these workers as they would a regular employee of the organization.

If you are a business owner or contractor who provides services to other businesses, then you are generally considered self-employed. If you are a business owner hiring or contracting with other individuals to provide services, you must determine whether the individuals providing services are employees or Independent Contractors and ensure that the workers are categorized in line with their status.

It is extremely important to note that the IRS does not allow all workers to be classified as Independent Contractors. The IRS has strict guidance regarding the classification of W-2 Employees verses 1099 Independent Contractors. The basic premise behind the determination is the amount of control that the company has over the worker and how the work is performed. Another large contributing factor is how important to the work is to the company’s core business.

The IRS uses a 20-step statutory test to determine whether an individual should be classified as an employee or contractor. This is certainly an area of the law where the IRS is increasing enforcement efforts. Therefore, it is critically important to ensure that workers are not misclassified as 1099 Independent Contractors when they should be W-2 Employees. Misclassification could result in substantial back taxes, IRS penalties, liability for workplace injuries, retroactive benefits, attorney’s fees, and other monetary damages. To see a summary of the IRS guidelines, please see the IRS Independent Contractor Checklist in the “Checklists” section under the “Essentials” tab in your HR Support Center.

Question & Answer

Taking a Second Look at Bloodshot Eyes: Random Drug Testing in the Workplace

Q: Should employers conduct random drug screening on their employees? Does there need to be a reason to ask an employee to submit to a drug test?

A: Many companies, especially those whose line of business involves interacting directly with vulnerable populations, as well as those who employ workers whose responsibilities include driving or operating machinery and equipment, may be inclined to enforce a strict policy against the usage of drugs or alcohol during business hours. Some employers may go as far as to enact random drug screenings of their employees without any specific reason, while others may incorporate the practice of drug and alcohol screenings only when there is “reasonable suspicion” or if an employee has become injured while in the course of work duties. If an organization chooses to incorporate the practice of random drug and alcohol screening, it is recommended that the policy has been disseminated to all employees. The Employee Handbook is a great place to communicate this company practice. The company’s guidelines, its stance on not tolerating drug and alcohol use during business hours, as well as the rehabilitative (if applicable) or disciplinary consequences of being under the influence of drugs and alcohol during work should all be clearly communicated within the employer’s policy on drug and alcohol use.

Another key point is to ensure that the employer is consistent in its practices; the company should be mindful in ensuring that its practices are in line in how it treats all of its employees regarding drug and alcohol screening. This will help prevent any discriminatory behavior on the organization’s part if all employees are treated consistently with respect to the company’s procedures on drug and alcohol use in the workplace.

A final note is that drug testing laws vary widely among states. Therefore, it is critical to check your state law to ensure that random, reasonable suspicion and post-accident drug testing are permitted in your state.

Is it Vacation or Paid Time Off?

Traditionally, employers offered separate paid time off benefits to employees, such as paid vacation, sick leave and personal days. However, in the past decade, many companies have moved to a more flexible Paid Time Off or “PTO” benefit that incorporates all policies into one all-inclusive PTO plan.

The debate as to whether employers benefit from offering PTO verses separate vacation, sick and personal leave plans is constantly being researched. In an effort to assist employers in making an informed decision in this regard, below are some advantages and disadvantages of combining the company’s separate paid time off benefits into a single Paid Time-Off (PTO) plan.

Advantages of a Paid Time Off Policy (PTO):

• Employees are not incentivized to lie about being sick or having a doctor’s appointment in order to use all of their annual sick days, resulting in more transparency in the employee/employer relationship.
• Research consistently illustrates that incorporating a PTO policy will result in employees taking more vacation time and less sick days. This benefits employers in two ways; first, employers typically receive more notice about scheduled vacations, affording more time to plan for adequate coverage. Second, most mental health professionals agree that employees return to work more refreshed and productive following vacation leave. The same results do not hold true for employees utilizing sick days.
• Employees tend to value the flexibility that PTO provides.
• Employers only have to track PTO hours, as opposed to separately tracking hours for vacation, sick and personal days.

Disadvantages of a Paid Time Off Policy (PTO):

• Employees are more likely to consume all of their PTO, whereas they may not have expended all of their sick or personal days in the past.
• Employees tend to save all of their PTO time for vacations and come to work when they are sick, at times causing illness among other employees.
• In some states, all earned PTO must be paid out upon separation of employment. Should the company enforce separate sick leave and vacation policies, state law often mandates that unused, accrued vacation time be paid out upon separation of employment, sparing the employer from compensating the departing employee for his/her unused, accrued sick leave.

Please refer to the HR Support Center’s Policy Library under the “Essentials” tab to view sample separate paid time off policies (such as vacation, sick and personal leave policies) and also a sample all-inclusive PTO policy.

Tool of the Month:

Sample Interviewing Questions Guide

When interviewing multiple candidates, hiring managers should be mindful in incorporating consistent criteria to evaluate each candidate for the position in question. Closely consider the candidates’ answers and reasoning behind them in terms of appropriateness for your company, work environment and job position priorities. As situations vary, select questions that best fit the job position according to subject areas. Consider and review the following subject areas to hire the right talent from the Sample Interviewing Questions Guide we have developed:

Subject Areas:

• Method-specific (telephone pre-screen)
• Behavioral-based
• Skill-based
• Position specific (Managerial/Executive)
• Functional/Industry-specific

To download the Sample Interviewing Guide, visit the HR Support Center, Essentials tab.

HRCast of the Month

Balancing the Civil Rights Act and Bona Fide Occupational Qualifications

Bona fide occupational qualifications (BFOQs) are employment qualifications that employers may take into consideration while making decisions about hiring and retention of employees. The qualification should relate to an essential job duty and is considered necessary for operation of the particular business. For example, a BFOQ to an organization that is hiring a female restroom attendant, but is considering only female applicants for this position.

The Bona Fide Occupational Qualifications rule allows for the hiring of individuals based on race, sex, age and national origin if these characteristics are bona fide occupational qualifications. This is an exception and complete defense to Title VII of the Civil Rights Act of 1964, which protects employees from discrimination based on religion, sex, age, national origin and color in the workplace.

On April 15th, be sure to visit the HR Support Center, and listen to this month’s HRCast to learn more about this topic.

HR Tip of the Month

Making an Impact with Employment Applications

As an employer, it is recommended that you routinely review your employment application process and ask yourself the following questions: Is your application process navigable? May jobs be submitted via a Company website application process, or is there an available alternative option to mail or fax for job application submission? Are employment applications initially reviewed manually by Human Resources staff and hiring managers, or through an Applicant Tracking System (ATS)? Employment applications are the first impression that a prospective candidate obtains of your organization, so it is crucial to create a practical application template in order to obtain key data about the applicant’s candidacy without making the form excessive in length or discriminatory in nature.

Did You Know?

700
According to statistics provided by the Equal Employment Opportunity Commission (EEOC), over 700 caregiver discrimination claims have been remitted in the last five years. More than 500 of those cases have been resolved in favor of the complaining parties. Please note: the range of responsibilities performed by caregivers includes workers who assist with child care, elder care and care for immediate family members.

Quote of the Month

“A satisfied customer is the best business strategy of all.”– Michael Leboeuf

A Look Ahead

April 1st-30th:

• Sexual Assault Awareness and Prevention Month (observed)
• Records and Information Management Month
• Stress Awareness Month
• Keep America Beautiful Month

April 1: April Fools’ Day

April 2: National Employee Benefits Day

April 5: National Walk to Work Day

April 7: World Health Day

April 15: Income Tax Day

April 16: National Stress Awareness Day

April 22: Earth Day

April 24: Administrative Professionals Day

April 25: Take Your Daughter to Work Day

April 26: National Arbor Day

Contact Us

Paragon Business Services, Inc.
7610 N Stemmons Frwy
Suite 600

Dallas,TX 75247
Additional Contacts
Phone: 866-444-4615
Fax: 214-951-1920

Legal Disclaimer: This message does not and is not intended to contain legal advice, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

Paragon Business Services HR Advisor March Newsletter

March 2013

Welcome!

Spring is almost here! Take a moment to look ahead and see what is in the forecast for upcoming labor law developments and tips to ensure that your business is in compliance.

HR Alerts

Notice of Exchanges and Subsidies: Delayed. According to the original Health Care Reform Acts, effective March 1, 2013, employers of all sizes were required to provide each newly hired employee with a written notice of the existence of health insurance exchanges and potential subsidies available (Notice of Exchanges and Subsidies). This notice was, subsequently, required to be provided to all current employees. However, on January 24, 2013, the US Department of Labor (DOL) announced that it has delayed the compliance date for the delivery of this document. The DOL estimates that the notices (for both newly hired and current employees) will be mandated in either late summer or early fall of 2013. The DOL will publish and release a model notice prior to the new deadline. Please watch for future E-Alerts from the HR Support Center as the facts and timelines continue to evolve regarding the Health Care Reform Acts.

 
DOL Final Rule on AFCTCA. Effective March 8, 2013, the Department of Labor (DOL) has published a Final Rule implementing the changes to the Family and Medical Leave Act (FMLA) made by the Airline Flight Crew Technical Corrections Act (AFCTCA). The AFCTCA amended the FMLA to incorporate a special eligibility provision for airline flight crewmembers and flight attendants. The DOL clarifies how the FMLA applies to airline personnel and flight crews since those employees work in an industry with a unique system of setting work hours. The new rule explains how to calculate the required number of labor hours airline employees must fulfill within a 12-month period in order to be eligible for leave covered by the FMLA.

 
DOL Final Rule on FMLA Military Amendments. Effective March 8, 2013, the Department of Labor (DOL) published a Final Rule implementing the changes to the Family and Medical Leave Act (FMLA) made by the 2010 National Defense Authorization Act (NDAA). The 2010 NDAA, amended the FMLA’s military caregiver leave provision to permit eligible employees to take leave to care for certain veterans with a serious injury or illness incurred or aggravated in the line of duty, which manifested before or after the veteran left active duty. It also now allows military caregiver leave for current service members with a
serious injury or illness that existed prior to service and that was aggravated by service in the line of duty on active duty. In addition, the NDAA expanded the
qualifying exigency provision to permit eligible employees to take qualifying exigency leave for covered family members in the Regular Armed Forces and added a foreign
deployment requirement for qualifying exigency leave for all military members (National Guard, Reserves and Regular Armed Forces). For additional information on this subject, contact an HR Professional.

 
FMLA Forms Update. Effective March 8, 2013, employers should begin to utilize the updated Family Medical Leave Act (FMLA) forms (revised February 2013) released by the Department of Labor (DOL), when applicable. The updated forms are: FMLA Form WH-381 (Notice of Eligibility and Rights & Responsibilities), FMLA Form WH-384 (Certification of Qualifying Exigency for Military Family Leave), FMLA Form WH-385 (Certification for Serious Injury or Illness of Current Servicemember for Military Family Leave) and FMLA Form WH-385-V (Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave). The forms may be downloaded directly from the HR Support Center, HR Forms Section.

 
FMLA Notice Poster Update. Effective March 8, 2013, there are changes to the federal Family and Medical Leave Act (FMLA) requirements. All employers covered by FMLA must display the updated FMLA notice poster, “Employee Rights and Responsibilities under the Family and Medical Leave Act” (WHD Publication 1420, revised February 2013), in a conspicuous area easily visible to all employees and applicants for employment. The poster summarizes the major provisions of the FMLA. In addition, it must be displayed at all locations an employer conducts business, regardless if there are fewer than 50 employees employed within a 75-mile radius of the worksite. If the employer chooses to utilize electronic postings to satisfy the posting requirement, this method is permissible only if the requirements of the regulations are met. The new FMLA notice poster is available in the HR Support Center in a downloadable format.

 
HIPAA Regulations Updates. Effective March 26, 2013, updates to the Health Insurance Portability and Accountability Act (HIPAA) regulations may impact certain employers. These regulations are based on changes under the Health Information Technology for Economic and Clinical Health (HITECH) Act, enacted as part of the American Recovery and Reinvestment Act of 2009 (ARRA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). Although comprehensive, some key updates expand HIPAA security and privacy standards to business associates, shift the default format for patients to receive requested records from paper to electronic, reduce the paperwork necessary for patients to release health information to third parties, decrease the threshold for security breach notification, increase penalties for noncompliance, and prohibit the sale of protected health information for fundraising and marketing purposes. Note: Covered entities and business associates must generally comply with the applicable requirements of the final regulations by September 23, 2013.

The Employer Mandate

From an employer’s perspective, this is most likely the most feared aspect of Health Care Reform. In fact, the overwhelming majority of our Health Care Reform-related questions to date in 2013 have covered this topic. So the purpose of this article is to answer some of our most commonly asked questions surrounding the Employer Mandate in very clear terms.

The “Employer Mandate” is the provision in the Patient Protection and Affordable Care Act (PPACA) that requires “large” employers to provide health insurance to their full- time employees (those working 30 or more hours per week) or face a penalty. A “large” employer is defined as one that has an average of 50 or more “full time equivalent” employees on business days during the preceding calendar year. To calculate whether your organization is covered by the employer mandate, you must look at the twelve months of the preceding calendar year to determine the average number of full-time equivalents you employed over those months. Part time employees are considered fractions of full time employees for the purpose of the employer mandate calculation. Lastly, seasonal workers are excluded unless they work for the employer for more than 120 days.

The formula for determining full time equivalent employees is:

Part-time Employee Equivalents (Total Monthly Part-Time Hours/120) + Full-time Employees (30 hours/week or more) – Owners (Sole proprietors, Partners in a Partnership, Members of LLCs Taxed as a Partnership, and Shareholders who own two percent or more in an S Corporation) = Full Time Equivalent Employees.

Should you determine that your organization will average less than 50 full-time equivalent employees in 2013 (using the above calculation), you are not required to offer health insurance to employees in 2014, and, if you do offer health insurance, the federal law does not require that you offer any minimum employer contribution amount. It is important to note, however, that your state law or your insurance carrier may have minimum employer contribution requirements in order to participate in group health
plans, but these are unrelated to the federal Health Care Reform laws.

Should you determine that your organization will average at least 50 full-time equivalent employees in 2013 (using the above calculation), you will be required to
offer “minimum essential health insurance coverage” at an “affordable rate” to all full time employees (those working at least 30 hours per week) in 2014. While part time employees are included fractionally in the calculation, the federal law does not require the employer to offer health coverage to part-time employees. So what is “minimum
essential coverage?” And what is an “affordable rate?”

“Minimum essential coverage” refers exclusively to the health insurance plan design, not how much the employer contributes to the plan. In order to offer minimum essential coverage under the federal law, the health insurance carrier must pay for at least 60% of treatment costs, commonly referred to as a health plan with a 60% actuarial minimum value. In the coming months, you will probably hear this level of plan referred to as a “bronze level” plan.

On the other hand, “affordable” coverage has everything to do with how much the employer contributes to the plan. It is a common misconception that a large employer is required to contribute a specific percentage to each employee’s health insurance plan (such as 50%, 60% or 75%). Rather, the federal law requires that the company contribute enough so that the employee’s portion of the premium for employee-only coverage of the bronze level or richer plan is no more 9.5% of the employee’s total household income. Since employers generally do not know an employee’s total household income, there is a safe harbor in place for 2014 stating that employees have access to “affordable coverage” as long as the employee’s portion of the premium for single coverage for the bronze level plan is equal to or less than 9.5% of the employee’s W-2 wages.

It is certainly time to calculate your organization’s projected full time equivalent employees in 2013 to determine if your business will be subject to the employer mandate in 2014. Remember, your Human Resources Professional, your Health Insurance Broker and your Accounting Professional are all great resources for your questions in this regard.

Question & Answer

Workplace Flair and Required Uniforms: Who Pays for Damages?

Q: How should employers handle uniforms? Can employees be required to pay for them at the time of hire and can the costs for lost or damaged uniforms be deducted from an employee’s wages?

A: Under the Fair Labor Standards Act (FLSA), an employer may prorate deductions for the cost of the uniform over a period of paydays provided the prorated deductions do not reduce the employee’s wages below the required minimum wage or overtime compensation in any workweek. Uniforms or other items which are considered to be for the benefit or convenience of the employer may not be included as wages. Additionally, the FLSA does not require that employees wear uniforms. If this is a business requirement, the cost and maintenance of the uniform is considered to be an expense of the employer. If an employee damages or fails to return a uniform to an employer, the employee may not be required to pay for any of its costs if such a reduction would result in the employee’s wages being reduced to below the required minimum wage plus overtime, if applicable. This provision is effective even if the economic loss to the employer is due to the employee’s negligence. The information here is simply a summary of the federal law regarding wage deductions for employee uniforms. Many states have more restrictive, state-specific laws in place.

Helping Employees find the Greener Pasture: Your Side of the Fence

In the past few years, many companies have had to tighten their budgets in lieu of further downsizing their employee headcount as a result of the economic recession that fell onto the US during the last quarter of 2007. Consequently, organizational strategy focused on lean workforce’s with employees often juggling multiple roles without seeing an increase in pay or promotion in job title. Due to the fact that most companies were not hiring during those troubled years, workers simply put up with the burgeoning workloads in their current jobs. Morale often suffered, but it went by the wayside as employers struggled to keep afloat and employees realized all too well that there were few alternatives in the job market.

As the economy has seen a rebirth of job creation in many sectors, employers have been hiring again but also focusing on the damage of the past few years. Many employees who were exemplary performers often did not receive financial incentives during the recession years. These workers may now be seeking opportunities outside of the organization, especially if they continue to feel unappreciated, overburdened and if they have not yet seen a significant upturn in their compensation.

Employee engagement is a challenge that many companies are currently facing as a result of the recession’s aftermath. Organizations seeking to retain top talent and to recruit employees who will remain loyal to the organization must incorporate employee recognition programs that will motivate workers to highly perform as well as encourage loyalty to the organization. For this reason, employers must enact a strategic program to increase workplace morale.

When managers openly and effectively acknowledge the efforts made by their staff and communicate their appreciation of employees’ hard work, it showcases to personnel that their productivity has been noticed and valued by the employer. Organizations that have integrated employee recognition programs into practice are more likely to utilize the programs in recognizing workers for their accomplishments.

By partnering with Human Resources professionals, the management team will be able to execute an employee recognition program that will promote accolades to staff members for their dedication, as well as motivate others to strive toward excellence in their roles.

Employers, historically, have been challenged with employee retention. Today’s hurdles are magnified by the low employee morale facing many organizations as well as the
resurfacing business market. The combination of these two factors leaves many organizations vulnerable to losing top talent and appropriate, thoughtful processes must
be put into place in order to infuse the company’s culture with a positive, motivating program that will encourage employee loyalty.

Replacing top performers is difficult, expensive and time consuming. As many companies are still feeling the effects of the recent recession, focusing on budgets is still a priority within the operating costs of a majority of organizations, large and small. With careful planning and implementation, an employee recognition program will build and increase worker morale as well as help alleviate an exodus of valuable personnel as hiring begins to increase again. Organizations that remain ahead of the curve and
prepare for future hiring trends by incorporating employee recognition programs to enhance employee morale and make employees feel valued by the employer will help reduce the number of employees that may have otherwise left the company in search of greener pastures.

Tool of the Month:

IRS Independent Contractor Checklist

Misclassification of an employee as an Independent Contractor may result in significant fines and penalties. The Internal Revenue Service (IRS) uses 20 factors to determine
whether or not an employer has enough control over a worker for that individual to be classified as an employee. Designed only as a guideline, this checklist can help
determine:

• Behavioral control (factors pertaining to job instructions, training, etc.)
• Financial control (factors pertaining to investment, expenses, profit/loss opportunities, etc.)
• Relationship of the parties (employee benefits, written contracts, etc.)

To download the IRS Independent Contractor Checklist, refer to your HR Support Center Essential tab.

HRCast of the Month

Making $1.00 Equal $1.00; Celebrating Women’s History Month

March is Women’s History Month. Originating in 1981, this heritage month is a time to pay tribute to the generations of women whose contributions have proved invaluable to society and contributed toward paying women and men equally in the workplace. The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work.

On March 15th, be sure to visit the HR Support Center, and listen to this month’s HRCast to learn more about this topic.

HR Tip of the Month

Categorizing Jobs in the Workplace Before Overtime Questions Arise

It is important to ensure that jobs are appropriately categorized. The Fair Labor Standards Act (FLSA) Non-exempt Status applies to employees who are typically paid at an
hourly rate and are paid for the number of hours of labor performed. Non-exempt employees are eligible for overtime pay. The federal rate of overtime pay is 1.5 times
the employee’s hourly rate of pay for all hours worked in excess of forty (40) in the predefined seven-day workweek. All states adhere to the federal overtime rate and some
have more restrictive, state-specific overtime pay laws in place.

Did You Know?

39%

According to the “Most Wanted Office Perks and What Motivates Workers to Stay With Companies” survey conducted by Harris Interactive on behalf of CareerBuilder, 39% of employers are concerned that they will lose their top performers in 2013 due to a variety of reasons. Data collected from the survey revealed that increasing salaries and/or employee benefits are the best incentives to boost employee retention.

Quote of the Month

“I have found no greater satisfaction than achieving success through honest dealing and strict adherence to the view that, for you to gain, those you deal with should gain as
well.” –Alan Greenspan

A Look Ahead

March: (monthly)
Women’s History Month
National Nutrition Month
Red Cross Month
Social Workers Month

March 1: Employee Appreciation Day

March 1: National Salesperson Day

March 8: International Women’s Day

March 10: Daylight Saving Time Begins (clocks move forward one hour at 2:00 am, local
time)

March 17: St. Patrick’s Day

March 20: International Earth Day

March 20: Spring Begins

March 25: Passover Begins

March 31: Cesar Chavez Day

March 31: Easter Sunday

Contact Us

Paragon Business Services, Inc.
7610 N Stemmons Frwy
Suite 600
Dallas, TX 75247

Additional Contacts
Phone: 866-444-4615
Fax: 214-951-1920

Legal Disclaimer: This message does not and is not intended to contain legal advice, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

Paragon Business Services HR Advisor August Newsletter

August 2012

Welcome

We hope you are enjoying the summer! We have spent the last several months working to update your HR Support Center. In just a few days, an exciting new interface will launch and allow you greater ease of use – including the ability to access the HR Support Center on most tablets or mobile devices. So, here’s to site enhancements and this final month of summer. Cheers!

HR Alerts

Medical Loss Ratio (MLR) Rebates. No later than August 1, 2012, insurance companies that do not satisfy Medical Loss Ratio (MLR) standards must provide their policyholders a rebate for the difference. The Patient Protection and Affordable Care Act (PPACA) requires health insurance companies to spend 80% – 85% of premium dollars on health insurance claims and clinical activities for improved healthcare quality.

OSHA Final Rule on Whistleblower Provisions. On July 10, 2012, the Occupational Safety and Health Association (OSHA) issued a final rule implementing the whistleblower provisions of the Consumer Products Safety Improvement Act (CPSIA). The provisions provide employees with protections against retaliation by employer manufacturers, private labelers, distributors, or retailers when an employee engages in one or more protected activity.

OSHA Heat Safety App. The Occupational and Safety Health Administration (OSHA) agency launched a new heat safety tool. The heat safety tool is a smartphone app which allows supervisors and workers to calculate the heat index for their worksite, displays risk levels to outdoor workers, and provides information on protective measures to reduce employee exposure to heat-related illness.

July 2012 HR Advisor Correction: Please note that the HR alert titled “Proposed Federal Minimum Wage Increase” had an incorrect political party reference. The alert should have read: “On June 6, 2012, Representative Jesse Jackson Jr. (Democrat) introduced the Catching Up to 1968 Act of 2012, a bill to raise the federal Fair Labor Standards Act (FLSA) minimum wage from $7.25 per hour to $10.00 per hour (beginning 60 days after enactment). The bill also proposes that the federal government increase the minimum wage each year based on inflation as measured by the federal Consumer Price Index (CPI). The bill would also increase the minimum wage for tipped employees to $5.50 an hour. Stay tuned for additional updates as they are released by the governing agencies. Currently, the status of the bill remains “Referred to Committee.”
The Implications of the U.S. Supreme Court Ruling on PPACA for Employers

On Thursday, June 28, 2012, the U.S. Supreme Court issued a ruling that essentially upheld the constitutionality of the Patient Protection and Affordable Care Act (PPACA), also known as the Health Care Reform Act.

As part of the ruling, the Supreme Court stated that Congress did not have the constitutional authority to mandate that everyone buy health coverage. They did, however, have authority to impose a tax if an individual did not comply with the mandate. Therefore, the individual mandate has been deemed constitutional by the Supreme Court if instituted as a tax. The employer-centered requirements were designed to support the individual mandate by making it easier for working Americans to obtain affordable healthcare. In addition, Congress can impose conditions on the states to receive federal funding for Medicaid coverage expansion, but may not threaten to remove any existing funding.

What does the High Court ruling mean for employers? The Act’s numerous provisions that impact employers remain intact. While some of the mandates already have been in effect, many more will become effective in 2013 and 2014. Employers sitting on the sidelines in anticipation of a complete repeal or significant changes to the PPACA must catch up in order to be compliant by 2014. Thus, employers must proceed with the Act’s provisions or prepare to pay penalties.

In terms of offering health insurance, PPACA identifies three employer categories – those with:

Fewer than 50 employees: “Small-size” employers do not need to provide employees health insurance coverage. On the other hand, if a small employer chooses to provide employee health coverage, starting in 2014, states are required to establish health insurance “exchanges” for employers who choose to provide health care to employees though a group health insurance policy.

50 – 199 employees: “Mid-size” employers must offer “affordable” health insurance coverage to their employees or be subject to penalties. If an employer chooses not to offer employee health coverage or offers an overly expensive coverage plan, then the employer will be subject to penalties.

200 or more employees: “Large-size” employers must automatically enroll all new employees in their health insurance plan beginning in 2014. If an employer chooses not to offer employee health coverage or offers an overly expensive coverage plan, then such employers also will be subject to penalties.

While further guidelines and explanations are expected from government agencies, immediate employer actions for the remainder of 2012 include, but are not limited to:

• Assessment of the Act’s effect on the business
• Determination of redistribution or usage of Medical Loss Ratio (MLR) rebates
• Distribution of Summaries of Benefits and Coverage (SBC) in time for the next open enrollment
• Reporting of group health plan coverage costs on 2012 Forms W-2
• Revisions to company cafeteria plans to reflect employee contribution limits on health care Flexible Spending Accounts (FSA)
• Stay tuned for more updates from the HR Support Center.

Question & Answer

Reference Checks

Q. We are considering hiring a new employee who was laid off from a previous employer (received severance package). We plan on contacting the former employer as a reference. Are we legally allowed to ask the former employer if the employee signed a non-compete agreement?

A. It is permissible to get all the information you can when conducting a reference/background check provided the information is not discriminatory nor will be used in a discriminatory manner. This type of information would be things related to protected classifications such as ethnicity, age, sexual orientation, etc. Determining whether the applicant is covered under a non-compete agreement that may hinder their ability to do the job with your organization certainly would be helpful and is permissible under the law. However, getting former employers to release information about their employees can be somewhat problematic in that many employers do not want to release anything except for hire date, separation date and position(s) held.
Unemployment Claims: Fighting to Winning

“You’re fired!” If you have ever said that to an employee (unless you are Donald Trump and filming the reality show “The Apprentice”), you should be prepared to pay for your now former employee’s unemployment claim. If an employee walks out and therefore terminates employment voluntarily, you may still be required to pay for unemployment. Confusing? You bet.

Terminations are part of the employment life-cycle. A voluntary termination results when an employee chooses to resign. An involuntary termination results when an employer fires, discharges, or lays off (due to budget, workforce reduction, or business closure issues) an employee.

If employers do involuntarily terminate, they should determine if unemployment benefit claims may apply and prepare to defend accordingly if the benefits are granted. Eligibility criteria impacts how unemployment benefits may be awarded. Some of the criteria for eligibility for unemployment benefits includes whether the terminated employee:

• Became unemployed through no fault of his or her own (e.g. job elimination or reduction in force)
• Earned sufficient wages with the company or during the claimant’s base year
• Is available for new work
• Is actively seeking work

An individual may become disqualified for unemployment benefits if he or she:

• Was fired for misconduct or a clear violation of company policy
• Quit without good cause (e.g. walking off the job because of a disagreement with a colleague)
• Returned back to the same job to work
• Turned down a suitable job offer during the unemployment period
• Participated in a strike or work stoppage caused by a labor dispute
• Received Social Security benefits, severance pay, workers’ compensation payments, state disability benefits, or a private pension
• Made false claims or omitted information on his or her unemployment claim

In addition, the weekly benefit amount is generally determined by the total wages paid to the employee by his or her employer(s) during the “base” period. The base period typically consists of a minimum amount of work completed within the last five quarters of a calendar year prior to the initial filing for benefits and the amount of earnings during the base period.

Sometimes, employers futilely try to avoid addressing unemployment insurance claims. Now, if you know the employee was discharged through no fault of his or her own, save some time and do not appeal the claim. In other situations, it may be worthwhile to appeal a claim when the employee was terminated for issues such as misconduct, policy violations, or a general unwillingness to perform work. The benefit to employers in defending the claim may result in the employer tax rate being lowered or not increased. Your employer unemployment tax rate is directly impacted by the number of successful claims charged to your account. If you do opt to dispute an unemployment claim, ensure you have gathered all records that may influence the denial or awarding of an unemployment claim, such as performance management evaluations, disciplinary notices/letters, individual complaints, investigation information (if theft, harassment, or workplace violence was an issue), witness statements if applicable, etc. Ensure all paperwork is also ready for the state unemployment agency in a timely manner. If paperwork is delayed, there is a chance the former employee may end up winning the battle by default or forfeiture.

Tool of the Month:

Benefits Compliance Guide

The Benefits Compliance Guide addresses regulatory requirements relating to current benefit items and issues employers should review for compliance with state and federal regulations. Some areas covered include:

• Summary Plan Description (SPD)
• Summary of Benefits and Coverage (SBC)
• Consolidated Omnibus Budget Reconciliation Act (COBRA)
• Family Medical Leave Act (FMLA)
• Employee Retirement Income Security Act (ERISA)
• And much more!

HRCast of the Month

Top 3 Action Items All Employers Must Do Now for PPACA

Out of all the health care reform provisions and requirements of the Patient Protection and Affordable Care Act (PPACA), what are the top three action items your company should focus on? This month’s HRCast explores this question and provides listeners with insightful answers and helpful tips.

On August 15th, be sure to visit the HR Support Center, and listen to this month’s HRCast to learn more.

HR Tip of the Month

Are you Prepared for an Emergency?

Emergencies and disasters can take various forms including violence at the workplace as demonstrated on July 20, 2012. In one of the deadliest mass shootings in recent U.S. history, a gunman entered a Denver-area theater during a crowded midnight movie screening and killed or injured numerous people. Our condolences go to all the victims as well as the families, friends and employers of the victims. Without warning, a disaster can strike and it is your responsibility to have a plan in place to protect your employees. Use the Workplace Evacuation Preparedness Checklist (available in the HR Support Center) to be proactive versus reactive in the case of an emergency.

Did you know?

92%

According to a Social Recruiting Survey conducted in June 2012, 92% of U.S. companies are using social networks and media to find talent in 2012, up from 78% five years ago. (Source: Jobvite)

Quote of the Month

“Management is efficiency in climbing the ladder of success; leadership determines whether the ladder is leaning against the right wall.”

-Stephen R. Covey

A Look Ahead

August 5:
Friendship Day

August 26:
Women’s Equality Day

Contact Us

Paragon Business Services, Inc.
7610 N Stemmons Frwy
Suite 600
Dallas, TX 75247

Additional Contacts
Phone: 866-444-4615
Fax: 214-951-1920

Legal Disclaimer: This message does not and is not intended to contain legal advice, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

Paragon Business Services HR Advisor July Newsletter

July 2012

Welcome

With half of 2012 in the books, we hope that your business has exceeded its first and second quarter goals. Midyear is a great time to review your company’s HR compliance strategy. Hopefully this edition of the HR Advisor will assist your management team in remaining abreast of important HR topics relevant to your business.

HR Alerts

U.S. Supreme Court Decides on Health Care Reform Act. On Thursday, June 28, 2012, the U.S. Supreme Court issued a ruling that upheld (except for sanctions related to Medicaid expansion) the constitutionality of the Patient Protection and Affordable Care Act (PPACA), also known as the Health Care Reform Act. The Act’s multiple provisions impacting employers remain intact, and many of the mandates become effective in 2013 and 2014. Thus, employers must proceed with implementation of the Act or prepare to pay penalties. Immediate employer actions for the remainder of 2012 include but are not limited to: assessment of the Act’s effect on the business; determination of redistribution or usage of Medical Loss Ratio (MLR) rebates; distribution of Summaries of Benefits and Coverage (SBC) in time for the next open enrollment; reporting of group health plan coverage costs on 2012 Forms W-2; and revisions to company cafeteria plans to reflect employee contribution limits on health care Flexible Spending Accounts (FSA). Stay tuned for more updates from the HR Support Center.

Federal Circuit Courts’ Stance on Hostile Work Environment. On June 4, 2012, the 11th U.S. Circuit Court of Appeals recognized a retaliatory hostile environment claim brought by two physicians who had filed Equal Employment Opportunity Commission (EEOC) claims against their employer, a VA hospital and a medical center (Gowski, et al v. Peake, et al). The 11th Circuit for the first time recognized a cause of action for retaliatory hostile work environment under the language contained in Title VII, and the EEOC’s own interpretation of the statute. Further, it found that prohibition of a retaliatory hostile environment is consistent with Title VII’s remedial goal of preventing supervisors from deterring protected conduct.

H-1B Cap Reached. As of June 11, 2012, the U.S. Citizenship and Immigration Services (USCIS) has announced it received enough H-1B cap-subject petitions to reach the annual 65,000 “regular cap” limit. USCIS will reject H-1B cap-subject petitions filed and received after June 11, 2012.

Employment Nondiscrimination Act. On June 12, 2012 the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to discuss the merits of the bipartisan Employment Non-Discrimination Act (ENDA). ENDA would create comprehensive employment based anti-discrimination protections for individuals based on their sexual orientation or gender identity.

New Deportation Rule. On June 15, 2012, President Obama announced an Executive Order that allows some undocumented youths to avoid deportation and receive work permits to remain in the United States (U.S.). Students in the U.S. who are in deportation proceedings or those who would have qualified for the Development, Relief, and Education for Alien Minors Act (DREAM Act) and have yet to come forward to Department of Homeland Security officials will not be deported and will be allowed to work in the United States. In addition, Secretary of Homeland Security Janet Napolitano announced young people who were brought to the United States as children through no fault of their own will be considered for relief from deportation, known as “deferred action.”

Employee Retirement Income Security Act (ERISA) Service Provider Fee Disclosures. Effective July 1, 2012, the final service provider fee disclosure regulations under ERISA Section 408(b)(2) must be met. These ERISA regulations are for both existing and new service arrangements. Under these regulations, Registered Investment Advisers (RIAs) and Broker Dealers (BDs) must disclose certain information to the responsible plan fiduciary, including services provided to the covered plan, fiduciary status, and direct and indirect compensation.

Form 5500 Record Keeping Requirements. As a reminder, under the Department of Labor’s (DOL) electronic filing regulations, plan administrators are required to keep a paper copy of the filed Form 5500 report, including schedules and attachments, in the plan’s records. The DOL stated a paper copy of the electronic filing receipt is not adequate in satisfying this requirement. The paper copy in the records must be a complete copy that is manually signed and dated.

The NLRB’s Social Media Policy Memorandum

On May 30, 2012, the National Labor Relations Board (NLRB) Acting General Counsel Lafe Solomon issued a memorandum regarding social media policies in the workplace. The General Counsel’s memorandum is applicable to both unionized and non-unionized work environments.

Section 7 of the National Labor Relations Act (NLRA) allows employees the right to form, join, or assist labor organizations and the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. In addition, even in union-free businesses, employee complaints about hours, pay, treatment, working conditions, etc. may not result in disciplinary action or termination under the NLRA. This section of the Act has important implications for employer social media policies, as delineated in the NLRB’s recent memo.

The NLRB’s memo covered seven social media policies published by various employers to demonstrate specific provisions that may be unlawful. Some of those social media policies are discussed here.
Policies concerning an employer’s attempt to protect confidential information may be unlawful.

• For example, a policy prohibiting employees from online discussions regarding “confidential guests, team members or company information” is unlawful because the policy could be shown as the employer prohibiting employees from disclosing information regarding their own terms and conditions of employment (which is a protected activity).

Policies that aim to show peaceful relations amongst staff may be unlawful.

• For example, a policy intended to reduce conflicts amongst employees (that may include controversial issues) can be unlawful depending on the topic. If the topic is about working conditions, it can be interpreted as inhibiting Section 7 rights, if employees are prohibited from discussing such matters (either verbally or in an online format).

Policies about employer image protections may be unlawful.

• For example, if the employer enforces a policy suggesting that employees are prohibited from commenting on legal matters, including pending litigation or disputes, the company may be unlawfully restricting employee communications. In addition, if an employer restricts which employees are permitted to discuss company information with the media, it may be unlawful. The NLRB stated that: “[e]mployees have a protected right to seek help from third parties regarding their working conditions,” so employers may not restrict social media comments to non-public forums only.

The social media policy that was approved by the NLRB allows for employees to band together to discuss or improve working conditions. Businesses are encouraged to adopt and/or modify the NLRB’s social media guidelines. According to the NLRB, it is still lawful to have a policy that bans harassment, bullying, discrimination, and retaliation using social media platforms. Another lawful provision in the memo stated that, “information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications” is permissible.

Although the NLRB’s new social media policy guidelines are somewhat restrictive, it is still important to publish a policy. It is critically important that businesses in certain regulated industries (medical, financial, etc.) adopt social media policies that comply with industry regulations, such as HIPAA. One final suggestion is to include a “saving clause” in the company’s social media policy. A “saving clause” is a statement such as, “nothing in this policy is intended to infringe upon Section 7 rights.” Such a clause may partially shield employers from liability.

Based on the number of violations outlined in the memorandum, many employers are not in compliance with the NLRB guidelines for social media policies. It is extremely important to comply in this area, as the NLRB’s interpretations seem to be supported by the US court system. It is important to have your social media policy reviewed by your HR Professional or your legal counsel to ensure it does not violate an employee’s Section 7 rights. It is also highly recommended for employers to contact a HR Professional or legal counsel before disciplining or terminating an employee due to his or her social media activities.

Question & Answer

Date of Birth Questions

Q. Is it legal to ask for the date of birth before making an offer of employment?

A. It is permissible to ask a job applicant for his or her date of birth prior to hire. However, an employer who asks this question would have to be able to defend themselves if charged with a discrimination claim and explain how the birth date is relevant to the job. If an employer has a job requirement to know if a job applicant is 18 or 21 for job related purposes (such as serving alcohol), the question on the application or during the interview would be, “Are you at least 18 or 21 years of age?” Age discrimination comes into play when an applicant/employee is over the age of 40. The birth date becomes irrelevant during the hiring process, but a minimum age can be a job requirement.

Summer Dress Codes: Too Hot for Compliance?

According to the May 2012 HR Support Center poll inquiring about spring and summer dress code policies, most businesses do not alter their dress code policies during these months. Out of all the respondents, 63% indicated no change during the spring and summer months from the company’s standard dress code, while 9% indicated that employees are not required to wear professional clothing during these months. There are several implications to be aware of in regards to workplace dress code policies in the summer.

• Health concerns (physical and mental stress). During the hot summer months, it is important to consider the health of employees who will be performing work outside or in a facility without air conditioning. The company may need to alter its dress code in order to reduce the physical stress of employees working outdoors, as physical stress can lead to reduced cognitive ability and heat-related injuries and illnesses. In addition, some employees may be protected under the American with Disabilities Act (ADA) which may require reasonable accommodations.
• Productivity levels (includes motivation). The productivity levels within the business may be reduced if employees are dressed in a manner that is distracting to themselves or others. Therefore, it is important to ensure that dress codes allow for maximum productivity. For example, if an employee is wearing a baseball cap during an office meeting, others may find that to be a distraction.
• Safety concerns (injury and accident prevention). There are several safety concerns to consider if dress codes are not properly enforced. Even in extreme temperatures, it is critical that employees wear all recommended and required safety equipment. For example, those in a construction field should not wear sandals; those in the medical field should avoid exposing unprotected skin and wearing loose accessories (such as jewelry) around hazardous chemicals, equipment/machinery (such as wheelchairs), and other things (i.e. syringes).
• Image/Professionalism. Even in the summer months, it is important that the company portray a professional business image. For example, allowing pilots to wear swim trunks could certainty result in decreases in customer confidence levels.

It is encouraged to write comprehensive policies that cover the business dress code. The management team must consider productivity, safety, and regulatory compliance when writing the dress code policy. It is vital to consider whether the dress code could create a charge of discrimination. A workplace dress code for summer months should not discriminate against members of a protected class under civil rights laws such as gender discrimination, religious discrimination and race discrimination. It is important to stay consistent for all exceptions to the policy and to apply consequences for all violators of the policy. Considering these factors will ensure the company’s dress code maximizes summer productivity and minimizes the potential for legal exposure.

Tool of the Month:

Employment Lifecycle Checklist

The employment lifecycle is a critical component for business success. Use the Employment Lifecycle Checklist to become organized and stay on top of your HR business needs related to employee relations. The employment lifecycle typically involves recruiting, hiring, orientation, training, advancement, coaching, disciplining, and terminating employees.

This checklist covers aspects such as:

• Employee communications
• Access protection
• Employment lifecycle stages
• And much more!

HRCast of the Month

Leveraging Mobile Technology to Your Company’s Advantage

How could you position mobile technology towards positive results for your company’s HR business needs? This month’s HRCast explores this question and provides listeners with insightful answers and helpful tips.

On July 15th, be sure to visit the HR Support Center, and listen to this month’s HRCast to learn more.

HR Tip of the Month

Tracking Hours Worked

It is the employer’s responsibility to track all non-exempt employees’ hours and pay accordingly. Employees may be required to use a time clock system or submit timesheets, but pay may not be withheld as penalty for missed punches or failure to submit a timesheet in a timely manner. However, the company may use its regular progressive disciplinary system when an employee fails to follow the company’s timekeeping procedures.

Did you know?

41%

According to the NACE 2012 Student Survey, approximately 41% of 2012 college graduates are using social media to help them land a job.

Quote of the Month

“Work joyfully and peacefully, knowing that right thoughts and right efforts will inevitably bring about right results.” ”

– James Allen

A Look Ahead

UV Safety Month

July 4:

Independence Day

July 22:
Parent’s Day

July 27:
Summer Olympics begin

First Day of Summer

Contact Us

Paragon Business Services, Inc.
7610 N Stemmons Frwy
Suite 600
Dallas, TX 75247

Additional Contacts
Phone: 866-444-4615
Fax: 214-951-1920

Legal Disclaimer: This message does not and is not intended to contain legal advice, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

June HR Advisor Newsletter

Welcome

We hope your summer is off to a bright and productive start.  As part of the recent upgrades to the HR Support Center, we hope you will take advantage of the following enhancements: the Wage and Hour Quick Guides section and the additional articles within the Knowledge section. Lastly, since June is National Safety Month, make sure you view the safety-related documents (i.e. checklists, guides, and forms) in the HR Support Center.

HR Alerts

New Pension Benefit Statements Rule Proposal. Expected to make an announcement in June 2012, the Employee Benefits Security Administration (EBSA) is working on a proposed Employee Retirement Income Security Act (ERISA) rule that would require the presentation of a participant’s accrued benefits as a lifetime income stream of benefit payments.

New Proposals on Employer Health Insurance Coverage. By June 11, 2012, the Internal Revenue Service (IRS) will accept comments about a new proposed ruling. The Centers for Medicare & Medicaid Services (CMS), Center for Consumer Information and Insurance Oversight (CCIIO), and the IRS released four documents related the Affordable Care Act (ACA) that address employer-provided group health insurance plan reporting requirements and the availability of premium tax credits to individuals and families.  The ACA makes tax credits available to help individuals pay insurance premiums, but these credits do not apply if the individual is eligible for employer-provided coverage that is both affordable (in terms of required employee contribution to premium payments) and provides “minimum value” (in terms of overall cost-sharing).

HHS New Medical Loss Ratio Reporting Requirement. The Department of Health and Human Services (HHS) Centers for Medicare & Medicaid Services (CMS) issued a final rule that imposes new reporting requirements on health insurance issuers that meet or exceed the applicable Medical Loss Ratio (MLR) standard for the 2011 reporting year. CMS requires issuers that meet or exceed the MLR standard to send a notice to policyholders that the issuer has met the minimum MLR standard for the 2011 reporting year. An issuer must provide the notice with the first plan document to enrollees on or after July 1, 2012.

Unemployed Applicants: The New Protected Class

In today’s economic times, a competitive job force embraces workers with various knowledge, skills, abilities, education, and experience levels. Hiring managers attempt to compare and contrast these items when determining the best job candidate for a specific position.  With respect to experience, many hiring managers consider long gaps in employment history on the resume or employment application to be a strike against a potential job candidate. However, due to the high levels of unemployment the country has experienced in the past few years, lawmakers are taking measures to ensure the job candidates who have experienced recent periods of unemployment are still considered viable candidates.

The Equal Employment Opportunity Commission (EEOC) is the agency that oversees discrimination in hiring practices. Some of the traditional protected classes include race, color, religion, national origin, age (40 and over), disability, military or veteran status, etc. Protected classes were developed from previous anti-discrimination laws such as the Civil Rights Act of 1964, Age Discrimination in Employment Act (ADEA), Equal Pay Act, Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA).

On April 5, 2012, President Obama signed into law the JOBS Act (Jumpstart Our Business Startups) that is intended to prohibit employers from discriminating against job applicants because they are unemployed. Under the Act, it is “an unlawful employment practice” if a business with 15 or more employees refuses to hire a person “because of the individual’s status as unemployed.”  Unselected job applicants will have the right to file a complaint with the EEOC if they are disqualified from consideration due to a recent period of unemployment. The JOBS Act contains the “Fair Employment Opportunity Act of 2011” (FEOA) that treats unemployed job applicants as a protected class under Title VII. The FEOA would make it an unlawful employment practice for an employer or employment agency that:

Fails or refuses to consider or hire an individual based upon his or her status as unemployed.

Instructs an employment agency to disqualify an unemployed individual from consideration, screening, or referral for employment.

Refuses to consider or refer an unemployed individual for a job opportunity.

Publishes advertisements which indicate that unemployed individuals are disqualified or will not be considered for employment opportunities.

Employers are encouraged to look carefully at their hiring methods (especially when viewing recent gaps in employment history) and to assess the role an applicant’s unemployed status has on hiring decisions. There are several remedies that apply within the JOBS Act that include injunctive relief, reinstatement, lost wages, punitive damages, emotional distress damages, and reasonable attorney’s fees and costs. Employers need to use caution when inquiring into the reasons underlying an applicant’s current unemployment status. Remember, anything more than a minimal investigation into an applicant’s current status (i.e. unemployed) may be considered as an influencing factor in the hiring decision. This can expose the employer to liability if the individual is not ultimately considered or hired for a position.

Question & Answer

Direct Deposit

Q. How can we encourage more of our employees to use direct deposit?

A. Although some state laws indicate employers cannot “require” direct deposit, employers should still inform employees about the benefits of using direct deposit options. Some benefits include:

• Convenience and time savings. Reduces travel time to go to the bank to cash the check.
• Safety and security. It reduces issues around lost, stolen or misplaced checks.
• Reliability. The money will be available the morning of the payment or sooner.
• Money management. Helps with managing money into different accounts (i.e. savings plan).
• Eco-friendly. It helps the environment by electing a “paperless” option, which saves trees.

Job Reference Immunity Laws – Who’s in Favor?

Many businesses have initiated “Job Reference” policies restricting the nature of information that may be provided about current and former employees to third parties.  While it is at times tempting to feel obligated to provide detailed information regarding a former employee’s performance in an effort to help the prospective employer, doing so may expose the company to some liability. Former employees have successfully sued their past employers for libel, slander, defamation, or negligent misrepresentation arising out of job references. Therefore, it is recommend proceeding with caution with job references and verifications in order to reduce the company’s exposure.

A fairly common company policy is to only release information that is completely objective in nature, such as the former employee’s dates of employment and job title. If the prospective employer would like additional information (such as salary information), generally employers require the prospective employer to send a written request for such information that includes the former employee’s written authorization to release the information. Company policies should prohibit the release of information that is subjective in nature.

While the “less is more” approach has been taken by most employers, some HR Professionals recommend taking a more “need to know” approach. The premise behind this approach is that the company’s failure to provide critical information may in fact expose the company to liability.  For example, if a current employer gives a reference check with limited information about an employee, and is aware that the employee committed a work-related crime (such as employee theft), a court could argue that the former employer had an obligation to disclose that information. This would apply if the employer was asked specific questions such as, ”Is this employee rehireable?” Or, “Has this employee committed a crime at your work site?” There may be some ethical obligation for a former employer to disclose certain information. For example, if an employer states a former preschool teacher was an excellent employee and never had performance issues, yet chose not to mention this same teacher was convicted of molesting a student, the company may have mislead the inquiring prospective employer. Therefore, the goal is to ensure reference checks are generally neutral; unless extenuating circumstances are present.

Many states have adopted some type of Reference Immunity Laws that ensure employers are protected who opt to provide reference checks. The state laws vary considerably in how they “limit” information to be disclosed by former employers. For example,Californialimits immunity to the disclosure of “job performance” information to be stated in an objective or subject manner.Marylandsuggests employers acting in good faith may not be held liable for disclosing to a prospective employer any job information about job performance or the reason for the termination of employment. Since there are several states with reference immunity laws, it is recommended to check your state laws or consult with a HR Professional.  Remember, if a reference check is conducted on behalf of a federal, state or regulatory authority, employers may not be held liable for any information that is requested/required or provided to the agency. Employers who knowingly disclose information that is false or misleading are not protected under these laws.

It is always a best practice to document employee actions, act in good faith, exercise restraint and always obtain written consent from the applicant. Another tip is to insert a waiver in a departing employee’s severance package releasing the business from all claims based on the voluntary disclosure of information about the employee to a third party. Reference immunity laws essentially protect employers from civil liability if they provide good-faith references or negative truthful information regarding former employees. Therefore, both employers and employees may or may not be in favor of this law.

Tool of the Month:

Risk Management Guide

Risk management consists of (1) identifying and analyzing the events that may cause loss to a business and (2) choosing the best ways to address potentials for such loss.

The Risk Management Guide will help provide you information regarding:

Proprietary Information Protection

• General Crime Prevention
• Insurance Considerations

Download the Risk Management Guide today from the HR Support Center under the Essentials section.

HRCast of the Month

Smartphone Apps Employees Might Use against Employers

Which smartphone tools are your employees downloading about their workplace rights that can be used against their companies? This month’s HRCast explores this question and provides listeners with insightful answers and helpful tips.

On June 15th, be sure to visit the HR Support Center, and listen to this month’s HRCast to learn more.

HR Tip of the Month

Verbal Warnings

As a best practice, managers should document verbal warnings. While a copy does not necessarily need to be provided to the employee, it should include details of how the employee was made aware of the action. It is also recommended for managers to keep a detailed copy of the verbal warning describing when, where and why a warning was issued in the Manager’s files. Such documentation may prove helpful if the company is ever required to defend an unemployment or discrimination claim

Did you know?

40%

According to a January 2012 Document Security Survey, 40% of adults believe it is never acceptable to take confidential company information out of the office, but others think it is acceptable to do so under certain circumstances, including when the boss says it is okay, to finish a late-night project from home instead of at the office, to work over the weekend or while on vacation, when the information is about themselves, when the manager will not find out, and when family or friends promise to keep it confidential. (Source: FileTrek).

Quote of the Month

“If you pick the right people and give them the opportunity to spread their wings—and put compensation as a carrier behind it—you almost don’t have to manage them.”

– Jack Welch

A Look Ahead

June:

National Safety Month

June 14:

Flag Day

June 17:

Father’s Day

June 19:

Juneteenth

June 20:

First Day of Summer

Contact Us

Paragon Business Services, Inc.
7610 N Stemmons Frwy
Suite 600
Dallas, TX 75247

Additional Contacts
Phone: 866-444-4615
Fax: 214-951-1920

May HR Advisor Newsletter

May 2012

Welcome

We have introduced new updates within your HR Support Center. Please take a moment to browse around the various content areas to make use of the handy tools we have available.

HR Alerts

DOL Extends Comment Period for Proposed FMLA Regulations. On February 15, 2012, the Department of Labor (DOL) published proposed regulations to the Family and Medical Leave Act (FMLA) in three specific areas: Military Family Leave, Flight Crew FMLA Eligibility, and the manner in which employers calculate increments of FMLA leave. Public comments originally were due by April 16, 2012. However, the DOL announced that it is extending the due date for comments to April 30, 2012.

OSHA GHS Final Rule. Effective May 25, 2012, the Occupational Safety and Health Administration (OSHA) announced that the final rule for Globally Harmonized System (GHS) of Classification and Labeling of Chemicals will become law. The new GHS rule will be added to OSHA’s existing hazard communication standard, or worker right-to-know law. The GHS is a logical and comprehensive approach to defining health, physical and environmental hazards of chemicals, creating classification processes that use available data on chemicals for comparison with the defined hazard criteria, and communicating hazard information.

Blocked NLRA Poster Requirement Update. A District of Columbia (D.C.) federal court has blocked the actions of the National Labor Relations Board (NLRB), which last year imposed a new requirement that employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA). This new NLRB poster requirement was supposed to take effect November 14, 2011, but that deadline was later delayed until January 31, 2012, and then again delayed until April 30, 2012. The most recent delay resulted from the D.C. court’s request to postpone the effective date pending a legal challenge to the new requirement. The court concluded that the NLRB could not make an employer’s failure to post an unfair labor practice, but rather the NLRB would have to show that the failure to post actually interfered with employee NLRA rights. However, the NLRB encourages employers to have the poster displayed as a best practice regardless of what the finalized decision will be (expected on or before September 2012). To obtain further information, contact a HR Professional.

Workplace Political Expressions

According to the HR Support Center March 2012 poll, 78% of respondents indicated “No” to the question posed of: “Does your company currently have a policy or practice that permits or prohibits political related activities in the workplace?” Due to recent “occupy” movements, legislative banter and election promotions, political activities can be effectively addressed with the implementation of well-prepared policies.

First of all, employers can limit political activity in the workplace. The First Amendment does not entitle individuals (employees included) to express their political views whenever and wherever they wish. Those in private-sector companies have no constitutional right to free speech, and can be terminated for expressing political beliefs as long as their dismissal does not violate some other federal or state law.

Political expressions encompass various (verbal or non-verbal) activities or inferences exchanged to support an idea, person, or thing. Often, there are pros and cons that come with political expressions presented in the workplace that can be treated as permitted or prohibited activities, which may or may not disrupt the workflow as well. Also, federal and state regulations further provide guidance for employers to consider when developing a policy.

The National Labor Relations Act (NLRA) describes federal regulations when an activity may be considered “protected” under law. Three rules apply to determine whether an activity (e.g. political) is protected under the NLRA:

Political activity occurs during non-working time and off the employer’s premises.

On-duty political support related to a specifically identified employment concern (e.g. Health Care Reform) is subject to restrictions imposed by lawful work rules.

Leaving or stopping work to engage in political support may be subject to restrictions imposed by lawful work rules. An employer cannot discipline or discharge employees who leave work without permission if their walkout is for the purpose of obtaining some improvement in their own working conditions from their employer who has control.

The above-noted activities can be viewed to be political in nature and permitted for employees to engage in since the NLRA states employees have the right to engage in concerted activity. However, union-related logos represented on campaign materials sometimes may or may not be prohibited in regards to business practices (such as safety and personal protective equipment).

In addition, state laws also make it illegal to discriminate on the basis of an employee’s political activity or affiliation. Employers have the right and responsibility to ensure that work environments are safe, and free of hostility aimed at employees because of protected classification such as race or gender. For example, in 2012 several political issues covered in the current media such as gay marriage and immigration reform, impact protected worker classes of race, religion and sex. Thus, it is vital to develop political expression policies to help manage the workplace.

Employer policies and best practices should:

Prohibit political statements while working and interacting with customers, visitors, etc.

Enforce dress codes on employees regarding pro-candidate items attire (e.g. buttons, pins, ribbons, clothing), that affect business.

Restrict access to social media and internet programs (email).

Prohibit political fundraising or informational meetings within the workplace, as part of “no solicitation/no distribution” rules.

Discipline employees for leaving work to attend a rally or other political event (as opposed to allowing for voting time leave).

Train supervisors and managers on the company’s policy and what steps to take if they hear or observe inappropriate workplace political debates that become intense.

Although there are some companies that by the very nature of their businesses are politically involved in campaigns and voter registration drives, many employers prefer to keep politics away from business relations and practices. Many courts uphold restrictions but only on conduct that is unlawful or demonstrably harmful to the employer’s legitimate business interests. Especially during an election year, it is in every employer’s interest to develop and enforce a political expression policy to ensure workplace productivity to be its finest and anti-discrimination to be at its highest.

Question & Answer

Electronic Signature

Q. What constitutes a legal electronic signature on our federal and state employment forms

A. An electronic signature is valid when the identity of the person has been confirmed on the document. In most cases, an electronic signature is facilitated through a third party-software that uses encryption in collecting signatures. Both federal and state laws permit the use of electronic/digital signatures, and they are considered exactly the same as a hand signed document. In fact the federal government moved to electronic signatures for contracts several years ago to improve efficiency. For this reason, there is no employment law prohibiting electronic files or signatures in terms of paperwork. The only word of caution is to ensure the technology meets the requirements described above. Just as you would verify an employee’s identity for I-9 signatures in person, the same process is required when accepting digital signatures. The only difference is how you collect the employee’s signature. Since some e-mail addresses are used to facilitate signatures, it is important to confirm the address is valid to avoid identity misunderstandings. There are no federal programs that prohibit electronic signatures for employment documents.

EEOC andADAStances on High School Diplomas for Hiring

In today’s competitive job market, employers look to hire well-qualified, diverse, talented, skilled, experienced, and educated candidates for job positions. Often, job postings and requirements specify minimum qualifications for prospective candidates to satisfy in order to be considered. Many employers are aware of the risk of discrimination claims affecting those from protected classes, and education background is one hiring criterion that is easily taken for granted.

Specifically, the Equal Employment Opportunity Commission (EEOC) addressed the issue of whether or not requiring a high school diploma is viewed as discriminatory. In a November 2011 discussion letter, the EEOC stated that requiring a high school diploma may violate the Americans with Disabilities Act (ADA) regulations if it is determined an individual cannot obtain a diploma due to a learning disability. However, if the individual applied for a reasonable accommodation, then the employer would need to consider that prospective job candidate, as long as he or she met the other minimum qualifications specified by the employer. A reasonable accommodation would allow the individual to perform the essential functions of the job.

The employer could also consider relevant work history and/or allow the applicant to demonstrate an ability to do the job’s essential functions during the application process. On the other hand, if there was a job-related need and business-need to have high school diploma (e.g. as pre-requisite), then the employer may require this from applicants.

In addition, if the employer is choosing from amongst multiple applicants, it may still choose the most qualified applicant and not be required to select the applicant with a disability. The employer should consider if a different applicant had applied without a learning disability (who did not have a high school diploma) versus someone who applied with a learning disability (who did not have a high school diploma). To provide further clarification, while theADAprotects job applicants whose disability made it impossible to obtain a diploma, it would not protect a job applicant who consciously chose not to finish this level of schooling.

Therefore, the next time your company is looking to fill in a vacancy, double check the verbiage on the job description and posting, as well as revisit your hiring practices. Be sure to understand the implications of the EEOC andADAregulations, especially if you require a certain educational background from job applicants.

Tool of the Month:

Wage & Hour Quick Guide

The Wage and Hour Quick Guide puts key points regarding federal wage and hour laws at easily accessible reference. Every employer, regardless of company size, must comply with basic employment laws that regulate wage and hour factors. At a time when litigation and agency investigations are ramping up, be sure to get a good grasp of fundamental wage and hour information and tools, such as:

• Convenient Checklists
• Top Employer Tips
• Business, State, and Federal Forms
• Checklists
• Related Articles

Take a moment today to check out the new Wage and Hour Quick Guide section in your HR Support Center.

HR Cast of the Month

Increased FMLA Enforcement Compliance is Coming

The U.S. Department of Labor’s proposed FY 2013 budget would allocate $6.4 million to hire additional investigators to enforce employment law provisions such as those under the Family and Medical Leave Act. This month’s HRCast explores the implications and provides listeners with insightful answers and helpful tips.

On May 15th, be sure to visit the HR Support Center, and listen to this month’s HRCast to learn more.

HR Tip of the Month

Safety Training Program

Various state and federal laws will specify which training programs are required to be conducted in your workplace. Employers should consider providing necessary and adequate training ensuring concepts are understood and transferred from the training to the workplace, and retaining safety training records as required by law or best practices.

Did you know?

15%

 According to the Society of Human Resources Management (SHRM) Human Capital Benchmarking database, the annual employee turnover rate averages 15% across all industries (SHRM HR Magazine).

Quote of the Month

“In the business world, everyone is paid in two coins: cash and experience. Take the experience first; the cash will come later.”

– Harold Geneen

A Look Ahead

May 1:

May Day

May 5:

Cinco De Mayo

May 9:

National Receptionist Day

May 13:

Mother’s Day

May 19:

Armed Forces Day

May 28:

Memorial Day (observed)

Contact Us

Paragon Business Services, Inc.

7610N StemmonsFrwy

Suite600

Dallas,TX75247

Additional Contacts

Phone: 866-444-4615

Fax: 214-951-1920