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How to properly place an employee on FMLA

12 November 2010

If an employee is eligible for FMLA coverage, you should place that person on FMLA leave. If you do not, she may not receive all of her rights and benefits under the law, and you cannot count her leave time against her 12-week entitlement.

Q: We have an employee who has been out of work for four weeks for a medical condition (supported by a doctor’s note) and is now asking for another two weeks of sick leave. It is getting tough to find other employees to cover her shifts. She has not requested FMLA leave. Do we have to give her the additional leave?

A: If your organization is covered by the Family and Medical Leave Act (FMLA) and the employee is eligible for FMLA leave, she is entitled to take up to 12 weeks of job-protected leave, assuming her medical condition meets the FMLA’s serious health condition definition.

Find out what to do at http://www.hrmatterstools.com

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Do you know the 4 methods required to establish FMLA?

12 November 2010

You know that the Family and Medical Leave Act (FMLA) requires you to give up to 12 weeks of job-protected leave in a 12-month period for various family and medical reasons. But did you know that the law also requires you to use one of four methods to establish how that 12-month period will be measured to determine an eligible employee’s leave entitlement? And you must tell your employees in advance which method you are using.

Depending on which method you choose, or if you fail to designate one at all, you could unintentionally allow employees to take more than 12 weeks in a row. Find out what the four counting methods are and which one eliminates leave stacking.

Find out what to do at http://www.hrmatterstools.com

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Issues in Setting Time Off for Bereavement Q&A

22 October 2010

No one likes to think about needing time off to deal with the death of a family member, but every employer has to be ready to address these requests.  Your compassionate response can help employees get through a difficult time.

Q:         We want to implement a bereavement leave policy but are not sure how much time off to provide.  What do most employers offer?

A:         Unfortunately, as the old saying goes, the only sure bets in life are death and taxes.  As a result, every organization should plan for the inevitability that its employees will need to take time off because of a death.  (Download free Short-Term Absences model policy including HR best practices and legal background.)

Most employers provide at least a minimal amount of paid time to attend funerals, and some give additional paid or unpaid time off to employees who must deal with estate settlement issues or who need more time to grieve.  The amount of time allowed varies, but, traditionally, many employers have used a simple formula that allocates a specific number of days depending on who died.  Thus, these employers often give three paid days off if an immediate family member dies and only one day off for more distant relatives.  The term “immediate family” generally includes only close relatives such as parents, siblings, children, and grandparents.

While this approach may be easy to implement, it does not acknowledge differences in familial relationships or grieving processes.  For example, an employee who has been estranged from his parents (covered under the definition of immediate family) but who was raised by an aunt (often excluded from that definition) would be limited to one day for the death of his aunt.

An expansive definition of immediate family that takes into account more than just blood relatives and marital relationships provides additional flexibility.  By including members of an employee’s household and any person who has been like a parent or child to the employee, you recognize the closeness of the relationships and the employee’s likely need for leave.  Therefore, to give employees more flexibility, some employers drop the “immediate” requirement and include in the definition all blood relatives, as well as household members.

Another problem with a bereavement leave policy that allocates time off based on familial relationships is the set amount of leave provided.  Many grief counselors question whether anyone can work productively just three days after the death of a close family member, especially a spouse or child.

A more flexible policy is one that allows employees a set number of paid days off to use for a variety of personal reasons (including death, marriage, and urgent personal business) and permits employees to determine how much time off they need, up to the set number of days allowed.  Other employers provide even more flexibility by using paid time off banks that combine all of the employee’s paid leave (including vacation) into a single leave pool to be used for any reason.  (Download free Short-Term Absences model policy including HR best practices and legal background.)

In addition to paid time off, you may want to consider granting unpaid leaves when more time to grieve and deal with estate settlement is needed.  Not all employees will need this extra time, but it should be appreciated, particularly when a close family member is involved.  Some employers even give time off several weeks or even months after a death in recognition that the grieving process may be delayed.  And, if your organization provides access to an employee assistance program or other counseling program, you can direct employees to this benefit as well.

Proper Designation of Leaves for FMLA Q&A

22 October 2010

If an employee is eligible for FMLA coverage, you should place that person on FMLA leave.  If you do not, she may not receive all of her rights and benefits under the law, and you cannot count her leave time against her 12-week entitlement.

Q:         We have an employee who has been out of work for four weeks for a medical condition (supported by a doctor’s note) and is now asking for another two weeks of sick leave.  It is getting tough to find other employees to cover her shifts.  She has not requested FMLA leave. Do we have to give her the additional leave?

A:         If your organization is covered by the Family and Medical  Leave Act (FMLA) and the employee is eligible for FMLA leave, she is entitled to take up to 12 weeks of job-protected leave, assuming her medical condition meets the FMLA’s serious health condition definition.

As a general rule, an employer is covered by the FMLA if it has 50 or more employees in 20 or more workweeks.  An employee is then eligible if she:  (1) has worked for the employer for at least 12 months (not necessarily consecutively); (2) has worked for the employer for at least 1,250 hours in the previous 12 months; and (3) works at or is assigned to a worksite that has 50 or more employees or which is within 75 miles of employer worksites that taken together have a total of 50 or more employees.  The employee also must have a serious health condition, defined broadly to include any “illness, injury, impairment, or physical or mental condition that involves” either inpatient care or “continuing treatment” by a “health care provider.”

(Download free FMLA Decision-Making Checklist.)

You should be aware that the employee does not have to request FMLA leave specifically.  She only has to provide sufficient information so that you can identify that the employee has a covered medical condition.  You are then obligated to determine whether the leave qualifies as FMLA leave and to then comply with the FMLA’s various notice requirements.  These notices include:

1.         Eligibility notice combined with an explanation of the employee’s rights and duties.  Once an employee requests FMLA leave, or as in this case, you have knowledge that an employee’s leave may be for an FMLA-qualifying reason, you must notify the employee within five business days, either orally or in writing, whether she is eligible to take FMLA leave.  The eligibility notice should state whether the employee is eligible for FMLA leave, and if not eligible, provide at least one reason why the employee is not eligible.  This notice also should explain the employee’s rights and responsibilities (such as the right to continued health insurance and any requirement that she provide medical certification) during FMLA leave and what will happen if she does not comply with these obligations.  The Department of Labor (DOL) has provided a sample notice that satisfies these requirements, WH-381, available online at www.dol.gov/whd/forms/WH-381.pdf.

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2.         Employer designation of leave as FMLA leave.  You also are required to designate leave as FMLA-qualifying within five days of receiving medical certification or other information necessary to determine that the leave is FMLA-qualifying, absent extenuating circumstances.  The designation should include any fitness-for-duty certification requirement for reinstatement (including a list of essential job functions if the employee must certify she can perform the essential job functions before returning) and whether you are requiring the employee to substitute paid leave for the otherwise unpaid FMLA leave.  The DOL also has provided a sample notice that satisfies these requirements, WH-382, available online at www.dol.gov/whd/forms/WH-382.pdf.

You can require the employee to provide medical certification to show that she has a serious health condition.  As a practical point, if she is unable to work because of her medical condition, she most likely will meet the serious health condition criteria.  (The DOL provides a sample medical certification form you can use, too, WH-380-F, available online at www.dol.gov/whd/forms/WH-380-E.pdf.)

Be aware, too, that you may be able to designate retroactively the time the employee has already taken for her medical condition as FMLA leave if you notify the employee of her FMLA rights as required by the FMLA.  This retroactive designation is appropriate as long as the employee does not suffer any actual harm because you did not initially designate the leave as FMLA-qualifying.  So, for example, if the employee maintained her health insurance as though she were actively employed during her sick leave (as required by the FMLA) and did not suffer any adverse action because of her absences, then it is likely that you can designate the time off as FMLA time and count it against her 12-week entitlement.

(Note that this retroactive designation is a relatively new right for employers, thanks to changes made to the FMLA regulations that took effect in January 2009.  Under the old FMLA regulations, if you did not properly notify an employee that her leave was covered by the FMLA, you could not count that absence toward the annual 12 weeks of FMLA leave.  You could only count any future leave as FMLA leave.)

If the employee is not covered under the FMLA, you still may have an obligation to provide her with leave if her medical condition is considered a disability under the Americans with Disabilities Act (ADA).  The ADA requires employers with 15 or more employees to provide accommodations to qualified disabled employees so as to allow them to perform the essential functions of the job.  A leave to seek treatment may be considered an accommodation.  A person with a physical or mental impairment that substantially limits a major life activity, such as walking, seeing, hearing, speaking, or breathing, is “disabled” under the ADA.  As under the FMLA, you can require the employee to provide medical certification of her disability and of the need for leave as an accommodation.

(Download free Serious Diseases model policy including ADA information, HR best practices, and legal background.)

If the employee is not covered under the ADA or FMLA, you should then treat her according to your normal leave and absenteeism policies.

Exempt Employees and Partial Day Absences

3 September 2010

You know that you cannot dock your exempt employees’ pay for absences of less than a day.  But can you require them to use paid leave for this time off?  Just as importantly, should you?

One issue that comes up continually for employers is how to deal with exempt employees who take time off in less than full day increments.  The Fair Labor Standards Act (FLSA) regulations make it clear that employers generally cannot dock their exempt employees pay for absences of less than a day without jeopardizing the exemption.

But, a question arises when employers have policies requiring exempt employees to use hours of paid vacation or sick time for partial day absences.  These policies provide a way for employers to attempt to avoid docking pay since the exempt employee’s salary remains the same.

This approach can raise questions, though, about whether the employee is really being paid on a “salary basis,” as required by the FLSA’s regulations.  Some courts and the DOL disagree about how the requirement affects the employee’s exempt status.  And, from an employee relations’ perspective, the requirement can create ill will from exempt employees who consistently work more than 40 hours a week without additional compensation.

* DOL Allows Use of Paid Time Off for Partial Days *

The DOL, in its opinion letters, traditionally has permitted vacation or sick leave offsets as long as the exempt employee does not experience a reduction in compensation.  So, according to the DOL, once an employee is out of paid-time off, you may not make any partial day deductions.  In the comments to the 2004 regulations, the agency specifically restates its prior position outlined in the opinion letters.

Several courts have adopted the DOL’s position.  For example, in Webster v. Pub. Sch. Emples. of Wash., Inc., 247 F.3d 910 (9th Cir. 2001), the Ninth Circuit determined that an employer can make deductions for partial day absences from an exempt employee’s leave bank.  According to the court, leave time is not considered salary, even when the leave can be paid out as cash at termination.   Similarly, in Schaefer v. Ind. Mich. Power Co., 358 F.3d 394 (6th Cir. 2004), the court acknowledged that exempt status is affected only by monetary deductions for work absences and not by non-monetary deductions from fringe benefits such as personal or sick time.

* Some Courts, States Disagree *

However, a few courts have disagreed.  They have determined that this practice, even without an actual loss of pay, treats the exempt employee like an hourly, nonexempt employee and, therefore, triggers loss of the exempt status.

For example, in Klein v. Rush-Presbyterian-St. Luke’s Med. Ctr., 990 F.2d 279 (7th Cir. 1993), the Seventh Circuit determined that a private employer improperly categorized employees as “professional.”  The employer had established a compensatory time “bank” based on overtime hours from which employees had to draw when working less than eight hours per day.  The court ruled against the employer even though the employees never were actually docked if their banks had a negative balance.

In addition, some state laws may impose different requirements for docking leave banks.  For example, Washington employers may make deductions from leave banks in partial day increments (but for at least one hour) only on the express or implied request of the exempt employee for time off from work.

As a result of this disagreement between the courts and the DOL, and since state laws may vary, employers still will be caught in the middle on this issue.  Accordingly, if you are a private employer and require exempt employees to use paid leave for absences of less than a day, you should consult legal counsel.

(Note that special rules apply for exempt public employees and allow them to be considered exempt even if their pay is reduced for partial day absences as the result of a pay system that meets certain requirements.  These rules are discussed in the FLSA regulations at 29 C.F.R. §541.710.)

* Consider Employee Reactions, Workloads Before Setting Policy *

As a practical matter, though, even if you are in a jurisdiction that allows use of paid leave for partial day absences, you may find that exempt employees resent being required to do so, particularly if they regularly work more than 40 hours per week.  In this situation, they are not entitled to additional pay when they put in long hours, but are required to use vacation or sick leave if they need a few hours off.

If your concern is that your exempt employees may abuse their status by leaving work early or coming in late, address those issues as a separate matter.  For example, discipline exempt employees who do not complete their work or who are not available when needed.  In other words, do not penalize all your exempt employees just because of the possible abuses of a few.

Download free Hours of Work policy.

Required Harassment Policy and Training Q&A

30 July 2010

Interestingly, most employers are not required to have a written harassment policy in place or to train employees about harassment. But, if you do not, you could expose your organization to a very expensive harassment lawsuit.

Q:Are we required to have a written policy on harassment and if so, do we have to provide harassment training to our employees? A:Even though harassment, and particularly sexual harassment, has been a hot-button topic in the workplace for the last 25 years, no federal law specifically requires you to have an anti-harassment policy or training, though a few state laws do. Still, a specific policy prohibiting harassment and providing training to your employees will help you create a positive work environment and limit your liability for potential harassment.

(Download free Productive Work Environment model policy including sexual harassment, HR best practices, and legal background.)

You should have a written harassment policy for two primary reasons. First, a strong and consistently enforced policy against sexual and other forms of harassment shows your commitment to, and promotes, a productive work environment. Harassment that goes unchecked has the very real potential to destabilize your operations through decreased morale and productivity and increased employee turnover.

Second, the policy can help prevent liability. Even though a formal written policy is not legally required by Title VII of the Civil Rights Act (the federal law prohibiting harassment as a form of discrimination), court decisions and guidances from the Equal Employment Opportunity Commission (EEOC) consistently show that employers can decrease their liability for hostile work environment harassment by maintaining and enforcing internal policies to prevent and deal with harassment. Decisions by the Supreme Court illustrate the importance of having an effective harassment policy and complaint procedures that include employee training. In Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, Fla., 524 U.S. 775 (1998), the Court determined that an employer may be able to defend itself from liability for harassment by a supervisor in certain cases if it has taken reasonable care to prevent and correct any harassing behavior. In particular, you must adopt a policy against harassment, have an effective complaint procedure, and take steps to ensure that employees are aware of their rights and obligations and are properly trained in harassment issues.

As noted above, a few states also do specifically require sexual harassment training. Some states, such as California and Connecticut, require harassment training only for supervisors. One state, Maine, requires that all new employees receive the training. And, Rhode Island requires employers with 50 or more employees to establish and disseminate a formal written sexual harassment policy. Accordingly, you should check with your state equal employment opportunity agency to determine potential coverage.

Clearly, if you do not implement a specific harassment policy and train your employees about the policy, you will have a difficult time defending harassment claims. To be effective, training should target not only employees but also supervisors who have the authority to hire, fire, or make other employment decisions. At a minimum, your harassment policy and training should include the following: 1. A statement that you condemn harassment of any kind, even if it is not explicitly prohibited by your policy or by law. The policy should prohibit not only sexual harassment but also harassment based on all protected classes, including race, color, sex, national origin, religion, disability, pregnancy, age, genetic information, and military status. 2. The definition of harassment, with particular attention paid to the legal definitions of sexual harassment, including quid pro quo and hostile work environment. 3. A description of prohibited conduct. 4. The consequences of violating your harassment policy and the types of behavior that may lead to immediate termination. 5. The use of your dispute resolution procedure for handling complaints. 6. Ways to report harassment combined with assurances that there will be no retaliation for filing complaints or making reports.

(Download free Productive Work Environment model policy including sexual harassment, HR best practices, and legal background.)

An obvious conclusion from the court cases and EEOC guidances is that harassment policies and training are not optional if you want to limit your liability. So, you can either treat a harassment policy and training as a necessary evil or turn it into an opportunity to enhance good employee relations. The latter approach makes the most sense since it both builds a positive work environment and a sound legal defense.

Dress Codes Can Be Different for Men and Women

29 July 2010

While it is generally true that you can have different dress and appearance standards for men and women, you need to make sure you are implementing them properly.

Many employers have questions about dress codes, and in particular, whether dress codes can specify different rules for the appearance of men and women. For example, can employers prohibit male employees from wearing earrings or having long hair? As a general rule, the answer is yes, as long as those differences reflect current social norms. (Download free Personal Appearance of Employees (Dress Code) model policy including HR best practices and legal background.) Below you will find out what the courts have said about this issue and get tips on implementing a dress code. * Dress Codes and the Law * Here is a quick overview of the legal issues. When an employer’s dress code differentiates between male and female employees, the charge often is made that a gender specific requirement constitutes sex discrimination in violation of Title VII of the Civil Rights Act (Title VII). However, generally, the courts do not require that both sexes must follow the exact same rules. Instead, they hold only that both sexes, when in similar situations, should be held to the same general standard. As an example, you might say that all office employees with customer contact (regardless of sex) must present a well-groomed, professional appearance. The standard is consistent but the actual rules may accommodate sex-based differences, such as different hair lengths. It is a well-settled principle of law that dress requirements that reflect current social norms typically have been upheld, even when they affect only one sex. The Seventh Circuit Court of Appeals determined thirty years ago in Carroll v. Talman Federal Savings & Loan Ass’n, 604 F.2d 1028 (7th Cir. 1979), cert. denied, 445 U.S. 929 (1980) that employers do not have to apply identical dress or grooming standards to men and women when the differences are justified by social norms. Applying the same logic, the Ninth Circuit Court of Appeals found, in Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir. 1977), that a grocery chain did not violate Title VII because it required only male employees to wear a tie. Also, in the same vein, policies prohibiting male employees from wearing earrings, but allowing women to wear them, generally have been upheld. For example, the court in Kleinsorge v. Eyeland Corp., 81 FEP Cases 1601 (E.D. Pa.), aff’d 251 F.3d 153 (3d Cir. 2000), found that minor differences in personal appearance codes that reflect customary modes of grooming do not constitute sex discrimination. Therefore, the employer’s request that a male employee not wear earrings, when female employees were allowed to so, did not violate Title VII.

* Ban on Long Hair for Males * Men generally have not been successful in claiming discrimination when policies restrict long hair for them only. In fact, the Equal Employment Opportunity Commission (EEOC) typically does not pursue such charges. Most court decisions regarding male hair length have held that male only standards are not sex discrimination. For example, the Eleventh Circuit Court of Appeals, in Harper v. Blockbuster Entertainment, 139 F.3d 1385 (11th Cir.), cert. denied 525 U.S. 1000 (1998), acknowledged the EEOC’s position and found that the employer’s policy prohibiting long hair for male employees did not violate Title VII. * Dress Codes That Impose a Burden * Dress codes that have no basis in social customs, that differentiate significantly between men and women, or that impose a greater burden on women usually are not upheld. For example, again in Carroll v. Talman Federal Savings & Loan Ass’n, 604 F.2d 1028 (7th Cir. 1979), cert. denied, 445 U.S. 929 (1980), the employer’s policy requiring all female tellers, office workers, and managerial employees to wear a uniform was found to be discriminatory because male employees in the same positions only were required to wear customary business attire.

In contrast, in Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006), the court determined that an employer’s sex-differentiated grooming standards requiring women to wear makeup and style their hair and men to have short hair and no facial makeup were not discriminatory. The complaining female employee did not show that the standards were more burdensome on women than on men. Be aware, too, that at least one state, California, prohibits employers (with some exceptions) from implementing a dress code that does not allow women to wear pants in the workplace.

* Be Practical and Consistent * As a practical matter, you actually have a lot of discretion in what you can require your employees to wear in the workplace. Bottom line, if a dress code is established for business reasons and applied uniformly, it generally will not violate employees’ civil rights, even if it has different standards for men and women.

That said, your dress code should not differentiate between men and women without good reason. To prevent legal claims, your code should reflect current social norms, business needs, and safety requirements. And finally, you should make sure you explain as best you can the underlying rationale for your policy to employees. They may not like your position any better, but at least they will know your intent and purpose.

Issues in Setting Time Off for Bereavement Q&A

29 July 2010

No one likes to think about needing time off to deal with the death of a family member, but every employer has to be ready to address these requests. Your compassionate response can help employees get through a difficult time.

Q:We want to implement a bereavement leave policy but are not sure how much time off to provide. What do most employers offer?

A:Unfortunately, as the old saying goes, the only sure bets in life are death and taxes. As a result, every organization should plan for the inevitability that its employees will need to take time off because of a death. (Download free Short-Term Absences model policy including HR best practices and legal background .)

Most employers provide at least a minimal amount of paid time to attend funerals, and some give additional paid or unpaid time off to employees who must deal with estate settlement issues or who need more time to grieve. The amount of time allowed varies, but, traditionally, many employers have used a simple formula that allocates a specific number of days depending on who died. Thus, these employers often give three paid days off if an immediate family member dies and only one day off for more distant relatives. The term “immediate family” generally includes only close relatives such as parents, siblings, children, and grandparents.

While this approach may be easy to implement, it does not acknowledge differences in familial relationships or grieving processes. For example, an employee who has been estranged from his parents (covered under the definition of immediate family) but who was raised by an aunt (often excluded from that definition) would be limited to one day for the death of his aunt.

An expansive definition of immediate family that takes into account more than just blood relatives and marital relationships provides additional flexibility. By including members of an employee’s household and any person who has been like a parent or child to the employee, you recognize the closeness of the relationships and the employee’s likely need for leave. Therefore, to give employees more flexibility, some employers drop the “immediate” requirement and include in the definition all blood relatives, as well as household members.

Another problem with a bereavement leave policy that allocates time off based on familial relationships is the set amount of leave provided. Many grief counselors question whether anyone can work productively just three days after the death of a close family member, especially a spouse or child.

A more flexible policy is one that allows employees a set number of paid days off to use for a variety of personal reasons (including death, marriage, and urgent personal business) and permits employees to determine how much time off they need, up to the set number of days allowed. Other employers provide even more flexibility by using paid time off banks that combine all of the employee’s paid leave (including vacation) into a single leave pool to be used for any reason. (Download free Short-Term Absences model policy including HR best practices and legal background .)

In addition to paid time off, you may want to consider granting unpaid leaves when more time to grieve and deal with estate settlement is needed. Not all employees will need this extra time, but it should be appreciated, particularly when a close family member is involved. Some employers even give time off several weeks or even months after a death in recognition that the grieving process may be delayed. And, if your organization provides access to an employee assistance program or other counseling program, you can direct employees to this benefit as well.

Retaliation Claims Move to Top of EEOC List

29 July 2010

When you take adverse employment action, you need to guard not only against discrimination charges but also against retaliation claims. Learn the basics of retaliation claims and find out four steps you should take to limit your exposure.

The latest Equal Employment Opportunity Commission (EEOC) statistics show that retaliation claims continue to be filed against employers in record numbers. Employees often file retaliation claims when they feel their employer has discriminated against them for exercising a legally protected right. Most federal discrimination laws specifically prohibit retaliation against individuals who exercise their rights under the statutes. In addition, state workers’ compensation laws and the National Labor Relations Act also prohibit retaliation.

How serious a problem is retaliation? These claims are now the most- filed claim with the EEOC and account for 36% of discrimination claims filed in fiscal year 2009, just edging out race discrimination claims for first place. In fact, employees are increasingly succeeding in retaliation claims even when their underlying discrimination claims are dismissed. Accordingly, you should make sure you review every termination decision to ensure retaliation has not occurred and follow the four tips we provide to limit your exposure.

(Download free Termination of Employment model policy including retaliation, COBRA, HR best practices, and legal background .)

* Discrimination Laws and Retaliation *

Federal discrimination laws specifically prohibit retaliation against individuals who oppose practices made unlawful by those statutes, including Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). Most state discrimination laws contain similar protections. Both former and current employees are protected from retaliation under federal discrimination laws.

To be successful with a retaliation claim, employees generally must prove the following three elements: (1) that they engaged in a legally protected activity (such as filing a discrimination claim or opposing discrimination); (2) that they suffered an adverse employment action (such as termination); and (3) that there is a causal connection between the protected activity and the adverse action. In addition, according to the Supreme Court in Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), Title VII also prohibits retaliation that is not directly related to employment or that causes the employee harm outside the workplace. For a claim to be actionable, a reasonable employee would have to find the retaliatory action to be “materially adverse,” meaning that the actions against the employee produce significant harm.

The first two elements of a claim are relatively easy for employees to prove; therefore, most retaliation cases turn on whether there is evidence of a causal connection between the adverse employment action and the protected activity. Courts often will find a causal connection when the time interval between the protected activity and the adverse employment action is relatively brief and the employee presents evidence that the protected activity was a substantial or motivating factor in the employer’s action.

* Retaliation Claims Can Succeed Where Discrimination Claims Do Not *

An interesting feature of retaliation claims is that they often are filed as part of a larger discrimination case. Employees who bring good faith discrimination claims are shielded from retaliation even if their complaint is ultimately determined to be meritless. As a result, employees include retaliation claims as part of their underlying discrimination complaints and often succeed with these claims even when their discrimination charges are dismissed.

For example, in Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840 (7th Cir. 2007), a nine-year employee, who could not prove race and national origin discrimination, was allowed to go forward with his retaliation claim. He was fired just days after he filed an EEOC discrimination charge and had never received any performance warnings until he complained to his supervisors about discrimination.

* Workers’ Compensation Claims Often Target Retaliation *

The exercise of other legal rights, like filing a worker’s compensation claim, also has been recognized as protected activity. In fact, most state workers’ compensation laws specifically contain retaliation provisions. These prohibit employers from taking adverse action against employees because they have asserted or filed a claim for workers’ compensation benefits, or have testified in a hearing or otherwise participated in a workers’ compensation proceeding.

Some courts have even extended this protection so that an employee who files a workers’ compensation claim is protected not only from retaliation by the employer against whom the claim is filed but also is protected from retaliation by a subsequent employer.

* Union Activities Also Protected *

Retaliation claims often are the basis of National Labor Relations Act (NLRA) claims, too. The NLRA prohibits reprisals against employees based on union membership, organizing efforts, and other concerted activities protected under the Act. For example, in Hosp. Cristo Redentor, Inc. v. NLRB, 488 F.3d 513 (1st Cir. 2007), the court found that the policy violation reasons the employer gave for suspending and terminating an emergency room nurse involved in a union organizing campaign were merely a pretext for its anti-union hostility. The court cited the fact that the hospital issued the nurse’s first disciplinary warning only after he became a union delegate and then followed with a series of warnings about “attitude problems” it linked to his expression of dissatisfaction with working conditions. In addition, the court also relied on evidence of conversations in which management linked his union activities to his failure to be promoted and to the reason he was “always in trouble.”

* Four Tips to Prevent Retaliation Claims *

As the discussion above demonstrates, retaliation claims can be as big a problem as any initial claims of discrimination, workers’ compensation, or NLRA violations. You need to be aware, too, that many other federal laws prohibit retaliation for exercising protected rights, including the FMLA, the FLSA and USERRA. Accordingly, as a way to limit your exposure to all retaliation complaints, you should take the following four steps:

1.Make sure that managers follow your termination procedures consistently. Managers should be required to consider their motives before terminating an employee and should be able to show they are treating the employee fairly and consistently. They clearly must not appear to target anyone who has made a discrimination claim or participated in a protected activity.

2.Document termination decisions to show the nondiscriminatory reasons for the action. You should provide an accurate accounting of the facts behind the decision and any steps taken prior to the termination action (such as counseling sessions and warnings to improve). These records can be a critical defense if you have to justify your actions externally or defend a lawsuit.

3.Review all termination decisions before implementing them. In particular, when the employee has been involved in a discrimination claim or is otherwise protected from retaliation, a termination recommendation should be reviewed before finalization by the HR department or someone at least one level of management above the immediate supervisor.

4.Implement and enforce clear “no retaliation” policies so that managers and coworkers understand the seriousness of the issue. For example, harassment, equal employment opportunity, and complaint policies should state plainly that you prohibit retaliation against employees who make complaints or provide information about discrimination or other protected activity. In addition, managers should be trained to know what actions can be interpreted as retaliatory.

(Download free Termination of Employment model policy including retaliation, COBRA, HR best practices, and legal background.)

Plaintiffs’ attorneys representing your employees now routinely add retaliation claims to their laundry list of allegations in discrimination and other complaints. By taking the above simple steps, you improve your defenses and the odds of winning if your organization gets caught in this trend. And, just as importantly, you are reducing the chances employees will feel unfairly treated in the first place.

COBRA Premium Reduction Subsidy Extended

29 July 2010

Congress extended eligibility for the temporary COBRA premium reduction subsidy by two months and provided six more months of reduced premiums for covered beneficiaries. Find out what new provisions were included in the extension.

The period to sign up for the Consolidated Omnibus Budget Reconciliation Act (COBRA) subsidy that provides terminated employees and their beneficiaries with a 65% premium reduction in health continuation insurance costs has been extended through February 28, 2010. In addition, the subsidy period has been extended from 9 months to 15 months of the COBRA 18-month entitlement period.

The subsidy, which originally was part of the $787 billion stimulus package created by the American Recovery and Reinvestment Act (ARRA), initially was available to any employee terminated involuntarily between September 1, 2008 and December 31, 2009, and their covered dependents, and provided only nine months of the reduced-rate COBRA coverage. The extension was part of the Department of Defense Appropriations Act, 2010, and was passed and signed into law on December 19, 2009. (Download free Employer’s Quick Guide to COBRA.)

Find out below how these changes affect your organization. In addition, you will find an analysis of the costs associated with the subsidy.

* Changes to the Original Subsidy *

Under the ARRA provisions that took effect February, 17, 2009, the COBRA subsidy provisions provided the 65% premium reduction for up to nine months and only applied to certain “assistance eligible individuals.” The original COBRA subsidy defined assistance eligible individuals as covered employees and their dependents who lost coverage as a result of an involuntary termination of the covered employee between September 1, 2008 and December 31, 2009.

The extension eliminates the requirement that the loss of coverage occur before the subsidy’s eligibility expiration date and instead requires only that the covered employee and dependents experience a qualifying event because the covered employee’s employment ended as a result of an involuntary termination between September 1, 2008 and February 28, 2010. In addition, the extension provides an additional six months of premium reductions, for a total of 15 months.

The extension also includes new notice requirements to alert assistance eligible individuals about the extensions. Further, it contains a provision allowing assistance eligible individuals to reinstate their COBRA coverage at the continued subsidized rates and to reinstate the coverage retroactively if their original nine-month subsidy had expired and they dropped COBRA coverage instead of paying the full COBRA premium. And, individuals who received the nine months of premium reduction provided originally and then paid the full COBRA premium can receive refunds and/or premium credits for the extra amount paid.

* The Effect on Employers *

The COBRA premium subsidy has been a great success from the perspective of increasing COBRA use and providing a safety net for out- of-work individuals and families. Ordinarily (i.e., without the subsidy), only about 10% to 20% of eligible people elect COBRA coverage, primarily because of the expense of the premiums. According to a recent survey by Hewitt Associates, elections increased to 38% after the subsidy became available. The Hewitt survey estimates that the average employee would pay $8,800 a year for COBRA coverage, so the 65% subsidy reduces that cost significantly to about $3,000. The extension of the subsidy likely will encourage even more people to elect coverage.

But, reviews from employers are mixed. While most employers are happy their former employees and their dependents are getting assistance with health insurance, they also may find that their insurance costs will rise. A 2009 survey by Spencer’s Benefits Reports found that claims from COBRA recipients were about 54% more expensive than claims by regular current employees. This added expense most likely is the result of adverse selection – beneficiaries with chronic health conditions are more likely to elect COBRA coverage to ensure continuity of coverage. In addition, the COBRA subsidy has created new regulatory obligations for employers, including extra paperwork and tax responsibilities.

And, the ultimate cost of the subsidy program is still unknown. The Congressional Budget Office estimated the subsidy would cost about $26 billion initially, and any extensions would add $7 billion in 2010 and $13 billion in 2011. But, these numbers may not accurately project the number of individuals eligible for the subsidy since it is unclear what factors were used to project the costs. With the national unemployment rate at 10% and higher in states like California, Michigan, and Ohio, those costs could be significantly higher.

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