Meet the trendy new lawsuit employers are getting slapped with

Meet the trendy new lawsuit employers are getting slapped with


Regardless of what you think of lawyers on a personal level, you’ve got to admit: They’re a clever bunch. When they see a legal tactic that works, they ride it until the wheels fall off. 

The new lawsuit du jour workers are slapping employers with: defamation.

The Recorder, a news outlet for tech-focused legal professionals, spoke to employment lawyers in the Silicon Valley area and found that plaintiffs are starting to frequently add defamation claims to their wrongful termination and discrimination lawsuits against employers.

Example: L. Julias Turman, a partner at the firm Smith Reed LLP, told The Recorder that at least 60% of his wrongful termination and harassment cases include defamation claims.

And here’s the kicker: Turman said defamation claims are being tacked on to lawsuits whether they’re appropriate or not.

Reason: They give plaintiffs another avenue for — and increase their chances of — recovering money.

Defamation defined

According to The Recorder’s report, the defamation claims being filed against employers involve an ex-employees accusing their bosses — i.e., management — of providing false reasons for firing them.

In other words, terminated employees are trying to recover money for what they claim are statements or accusations made by their former employers that hurt their names — or personal brands — to the point that it would be difficult for them to find future employment.

An example of how a defamation claim could easily be tacked on to a harassment or discrimination lawsuit: Say a worker is claiming that he was fired for discriminatory reasons because he’s African American. And say the employer has stated that its reasoning for terminating him is because he was constantly late for work.

The worker can tack a defamation claim onto his discrimination lawsuit by alleging that the statements about his punctuality were false and were actually used as a pretext for firing him.

The attorneys interviewed by The Recorder said that this was always a course of action plaintiffs could take, but there’s a heavier focus on it now.

And that’s because it’s working. In a recent case highlighted by The Recorder, a worker terminated by Kemper Independence Insurance Co. had his wrongful termination and retaliation claims thrown out of court, but the man still managed to win a five-plus million dollar judgement because of his defamation claims.

That’s the type of result that makes attorneys stand up, take notice and find ways to tack defamation on to future suits.

The defense for employers

The good news: Employers aren’t powerless to defeat these claims — as long as they’ve got their documentation in order.

One attorney, Christopher Whelan, of Christopher H. Whelan Inc., whom The Recorder said has been described as “a guru in the field” of defamation, said proving a defamation claim isn’t easy for plaintiffs.

All an employer has to do, according to Whelan, to defeat one is prove that the alleged defamatory statement is true.

In other words, if you say a worker was chronically late, all you’d need are time and attendance records to back up that statement.

Taking things one step further, this means that you need ask yourself if you can back up, with hard evidence, that what you’re about to say about an employee is true — especially when what you’re about to say could hurt the person’s future employment prospects.

Spread the word to your managers.

For more HR News, please visit: Meet the trendy new lawsuit employers are getting slapped with

Source: News from HR Morning

Chronic tardiness covered under the ADA? Hey, it could happen

You know that one irritating guy who’s late for everything? He could be asking for an ADA accommodation soon.  

According to a story from London’s Daily Mail, a man who has been late for everything in his life — from funerals to first dates — recently had his chronic tardiness diagnosed as a medical condition.

His penchant for lateness was diagnosed as a symptom of his Attention-Deficit Hyperactivity Disorder (ADHD) at a hospital in Dundee, Scotland.

Doctors there said the part of Jim Dunbar’s brain that’s involved in his ADHD also makes it difficult for him to judge how long it takes to do things — like get ready to go to work, apparently.

Dunbar said he didn’t mind his story being made public: ‘The reason I want it out in the open is that there has got to be other folk out there with it and they don’t realize that it’s not their fault.

‘I blamed it on myself and thought ‘Why can’t I be on time?’ I lost a lot of jobs. I can understand people’s reaction and why they don’t believe me.”

According to the Daily Mail story, some psychologists believe that chronic lateness could be a symptom of an underlying mood disorder such as depression, and many ADHD sufferers complain they struggle to keep time.

Just a minute …

The Mail did note some skepticism of Dunbar’s diagnosis among the medical community.

Dr. Sheri Jacobson, psychotherapist and director of Harley Therapy Clinic in London, told the newspaper:

The condition isn’t in the DSM5 (the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders) so I’m not sure you can really call it a condition …

Repeated lateness is usually a symptom of an underlying condition such as ADHD or depression but it can also just be habit.

I think making everyday human behavior into a medical condition is unwise.

We’d certainly agree with Dr. Jacobson. But ADHD can be a disability, correct? And getting to work on time could certainly fall into the category of major life activities.

So when will we see our first disability lawsuit from an employee who’s been axed for showing up late too many times?



For more HR News, please visit: Chronic tardiness covered under the ADA? Hey, it could happen

Source: News from HR Morning

Obamacare’s summer fee is due soon: Ready to pay?

If you sponsored a health plan in 2014, Uncle Sam is expecting a check this summer. 

Remember the Patient-Centered Outcomes Research Trust Fund Fee that you started paying in 2013 — if you’re an insurer or self-funded plans sponsor, that is? Well, it’s back again.

All firms subject to the fee — again, insurers or self-funded plan sponsors — are expected to cut the IRS a check by July 31, 2015.

The money is for research conducted on the clinical effectiveness of medical treatments, procedures and drugs.

Those responsible for paying the fee must also file the new IRS Form 720 along with their payments.

Think your off the hook if you sponsor a fully-insured plan? You’re not. The fee and paperwork responsibilities may technically fall on your insurance company, but you can bet it’ll extract its pound of flesh from you by way of higher premiums.

How much?

The fee this year: It has increased from $2 last year to $2.08 per life covered by a health plan that reached year-end in or after October 2014. For plan years ending earlier than October 2014 the fee is still $2.

The fee, which was created by the Affordable Care Act, is tied to inflation, hence the $0.08 up-charge for more recent plans. And that means the fee will continue to increase over the years — until 2020, when the fee is no longer in effect.

To calculate their total liability, plan sponsors and insurers need to use the average number of covered lives during the plan year. And when calculating that figure, plans must include any covered spouses or dependent children covered by the policy.

Example: If an employee has a family plan that covers his spouse and two children, that counts as four covered lives.

In addition, any individuals (and their beneficiaries) covered under COBRA also count as covered lives.

Which plans are exempt?

As with any rule, there are exceptions.

Plans exempt from the fee include:

  • dental or vision plans for which a separate policy was written and employee election is needed
  • EAP, disease management and wellness programs that provide no significant medical care
  • plans covering individuals working outside of the U.S.
  • HSAs, and
  • certain HRAs and FSAs.

For more HR News, please visit: Obamacare’s summer fee is due soon: Ready to pay?

Source: News from HR Morning

New FMLA forms released — what you need to know now

For the first time since 2012, the DOL has rolled out brand new FMLA forms. Here’s what’s new, what isn’t and how long can you expect to use these versions of the forms.  

Following the DOL’s announcement, FMLA Insights Jeff Nowak analyzed the new forms with a fine-toothed comb and discovered not much has changed.

The most notable difference in the updated forms: a new GINA reference. In the instructions to the healthcare provider, which is located on the certification for an employee’s serious health condition, the feds have added the following language:

Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).

The concept of adding GINA disclaimers isn’t in and of itself new. Employment attorneys like Nowak have been urging employers to take this extra step for some time to protect themselves from inadvertent GINA violations. However, the addition of specific language to this FMLA form is new.

Until 2018

The new FMLA forms will be good until the spring of 2018. The DOL is required to submit its FMLA forms every three years to the Office of Management and Budget (OMB) for approval, so that OMB can review the DOL’s information requests and the time employers spend responding to the requests. OMB approved the DOL’s previous FMLA forms in early 2012 for the maximum period of three years.

Here are new FMLA forms:

For more HR News, please visit: New FMLA forms released — what you need to know now

Source: News from HR Morning

Time & Attendance Best Practices: Handling Retroactive Calculations

Retroactive calculations are often required in time and attendance applications. The subject of retroactive calculations is an important one because timesheets are often turned in with errors. In other situations, a policy change is made effective retroactively, thus requiring whole groups of timesheets to be recalculated. Download the white paper now!

Click here to learn more!  

For more HR News, please visit: Time & Attendance Best Practices: Handling Retroactive Calculations

Source: News from HR Morning

New FLSA overtime rules: Hard numbers show what they could cost you

New FLSA overtime rules: Hard numbers show what they could cost you

FLSA overtime rules

The DOL is changing the compensation game. It’s rewriting the FLSA’s overtime exemption rules in an effort to make more employees overtime-eligible. What’s this going to cost employers? 

Oxford Economics, a global analytics, forecasting and advisory firm, has done the math.

And based on the one thing we know for sure about the soon-to-be-released revisions to the FLSA — that the minimum salary threshold to be overtime-exempt is going to increase from $455 per week ($23,600 per year) — here’s what Oxford Economics has come up with:

  • If the salary threshold increases to $610 per week ($31,700 per year), it’ll cost businesses $297 million nationwide.
  • If the threshold rises to $808 per week ($42,000 per year), it’ll cost businesses $648 million.
  • If the threshold climbs to a whopping $984 per week ($51,000), it’ll cost businesses $874 million.

And all of that is just in administrative costs — not actual increases to workers’ take-home pay.

In a report commissioned by the National Retail Federation, Oxford Economics said it’s unrealistic to think employers will do nothing to offset the increased costs of having more employees suddenly overtime-eligible.

In its report, the forecasting firm said that the action businesses are most likely to take is to initiate administrative changes to make “significant adjustments in the structure of their workplaces to compensate for the billions of dollars of added wages the new regulations would impose.”

Oxford Economics predicts that under this scenario, employers would “adjust compensation schemes to ensure they do not absorb additional labor costs.”

To do this, the firm predicts employers would:

  • lower hourly rates of pay
  • cut employee bonuses and benefits so they can increase base salaries above the new threshold, and
  • reduce some workers’ hours to fewer than 40 per week in order to avoid paying overtime.

All of these actions would thus leave total pay largely unchanged.

But taking these actions would result in the expenses outlined above.

Oxford Economic drew these conclusions after analyzing recent academic research and interviewing retail and restaurant industry insiders.

The cost if employers don’t act

Not taking administrative actions to offset the effects of the increase to the overtime threshold would cost employers far more.

Oxford Economics’ predictions:

  • Taking no action to offset an increase in the threshold to $610 per week would make roughly 800,000 more workers in the retail and restaurant industries overtime-eligible and would cost companies $1.1 billion each year.
  • Taking no action to offset an increase to $808 per week would make 1.7 million more workers overtime-eligible and cost businesses $5.2 billion.
  • Taking no action to offset an increase to $984 per week would make 2.2 million more workers overtime-eligible and cost employers $9.5 billion.

The most likely scenario

We’ll know any day now where the DOL wants to set the new threshold. The Secretary of Labor Thomas Perez recently announced that the proposed FLSA rule changes have been submitted to the federal Office of Management and Budget for review.

Once approved by that office, we’ll have our first look at what they are as they’re opened up for public comment.

But all the clues coming from Capitol Hill seem to indicate that the new salary threshold will land right in the middle of these figures at about $808 per week or $42,000 per year.

The infographic below shows you in more detail what kind of an affect that would have on employers and the workforce.

For more HR News, please visit: New FLSA overtime rules: Hard numbers show what they could cost you

Source: News from HR Morning

Obamacare is raising costs by how much? Survey shows expected impact

The name, “The Affordable Care Act,” doesn’t seem to be doing President Obama’s signature piece of legislation any favors. It appears to have made the law the brunt of employers’ ire because it hasn’t stopped healthcare costs from climbing as the name suggests it would.

As a result, the ACA is public enemy No. 1.

And now, instead of blaming market conditions, which had healthcare costs on the rise long before the law was passed, employers are blaming Obamacare.

One of their biggest beefs: Not only has the law not reduced costs, it has actually added expenses by way of administrative burdens.

How much is Obamacare increasing costs?

A recent survey (PDF) conducted by the Internal Foundation of Employee Benefits Plans revealed that most employers believe the ACA is driving up healthcare costs this year and — worse yet — we haven’t seen the worst of it.

By how much are employers saying the ACA will increase their health benefits costs in 2015?

  • By more than 10% — said 8% of employer respondents.
  • By 7% to 10% — said 12% of employers.
  • By 5% to 6% — said 16% of employers.
  • By 3% to 4% — said 23% of employers.
  • By 1% to 2% — said 23% of employers.

Seventeen percent of employers said they expect “no change” in their health benefits costs in 2015 due to the ACA, and just 1% said the law will decrease their costs.

The five biggest cost drivers?

  • General administrative costs — said 56% of employers.
  • Reporting disclosure and notification requirements — said 37% of employers.
  • Patient-Centered Outcomes Research Institute fees — said 33% of employers.
  • ACA-related plan design changes — said 20% of employers.
  • Health insurance provider fees — said 18% of employers.

Worst is still to come

As bad as all that looks for 2015 health benefits costs, the worst of the increases are still to come, according to 71% of employers.

The breakdown looks like this:

  • 33% of employers say the largest ACA cost increase will come in 2016.
  • 11% believe it’ll come in 2017.
  • 27% believe it’ll come in 2018.

The biggest cost driver in the future? Gearing up for the excise “Cadillac Tax” on high-cost health plans, which takes effect in 2018.

Will employers drop coverage?

The good news, at least for employees, is that despite their belief that costs will continue to climb, the majority of employers don’t plan on dropping their health benefits anytime soon.

When asked how likely it would be that they’d still be providing health benefits in five years:

  • 52% said it was “very likely”
  • 33% said they “definitely will”
  • 11% said they were “somewhat likely”
  • 3% said they were “somewhat unlikely,” and
  • 1% said they were “very unlikely.”

Zero said they “definitely won’t” be providing health benefits five years from now.

The top 5 reasons for continuing to offer coverage:

  • To attract talent — said 79% of employers.
  • To retain current employees — said 75% of employers.
  • To maintain/increase employee satisfaction and loyalty — said 53% of employers.
  • To maintain/increase productivity — said 14% of employers.
  • To avoid paying penalties — said 14% of employers.

For more HR News, please visit: Obamacare is raising costs by how much? Survey shows expected impact

Source: News from HR Morning

A positive program gets a $100K kick in the face

This is how a good idea can turn out badly.  

Seems that restaurant chain Ruby Tuesday posted an internal announcement within a nine-state region (Oregon, Arizona, Colorado, Iowa, Minnesota, Missouri, Nebraska, Nevada, and Utah) for temporary summer positions. The jobs came with company-provided housing and the chance for higher-than-usual earnings, apparently because the restaurants were located in resort areas.

The problem: The announcement stated that only females would be considered, purportedly because of concerns about housing employees of both genders together. Ruby Tuesday only hired women to fill the openings.

And that blew up in the company’s face when two males were denied jobs as servers in the chain’s property in the busy resort town of Park City, Utah. The pair complained to the Equal Opportunity Employment Commission.

Now Ruby Tuesday will pay $100,000 and implement preventative measures to settle a sex discrimination lawsuit brought by the EEOC.

The EEOC filed suit in U.S. District Court after first attempting to reach a voluntary pre-litigation resolution through its conciliation process.

Under the consent decree resolving the suit, Ruby Tuesday will pay employees Andrew Herrera and Joshua Bell a total of $100,000 and take steps to prevent future sex discrimination.

The company will provide training to all of its managers and employees on Title VII and job assignments in the nine-state area covered by the EEOC’s lawsuit for the duration of the three-year decree.  This includes an estimated 1,600 managers and employees at 49 different locations.

Ruby Tuesday will also report its training efforts to the EEOC, and post reminders of this resolution on its website and at its restaurants.

For more HR News, please visit: A positive program gets a 0K kick in the face

Source: News from HR Morning

A field guide to the weirdest ways employees quit their jobs

If anybody understands how bizarre human behavior can be, it’s HR pros. So for your entertainment, here’s a compilation of head-scratchers from the “I Quit” archives.  

Make no mistake, there’s a price to pay for qutting a job in a disruptive way, according to a recent OfficeTeam survey.

OfficeTeam, a leading staffing service, put this question to HR managers: “In your opinion, how does the manner in which someone quits a job affect that person’s future career opportunities?” Nearly nine of 10 (86%) said it either “greatly” or “somewhat” affected the departing employee’s future prospects.

Apparently, there’s a group of workers (perhaps they’re now former workers) who didn’t care about possible consequences. The researchers asked the HR managers to recount the most unusual way they’ve heard of someone quitting. Some of their responses:

  • “An employee baked a cake with her resignation letter written on top.”
  • “A marching band accompanied one guy in his announcement.”
  • “The worker threw a brick through the window with the words ‘I quit’ written on it.”
  • “An employee left a sticky note explaining he was quitting.”
  • “The individual sent an email blast to all staff.”
  • “A worker threw a cup of coffee and walked out.”
  • “One employee bragged to his colleagues that it was his last day, but failed to let the HR manager or his boss know.”
  • Some workers went high-tech with their resignations:
  • “One woman created a music video to explain she was leaving.”
  • “A worker sent his boss a text message.”
  • “One person quit via Facebook.”
  • “The employee submitted a message through the company website.”
  • “Someone resigned on a video conference call.”

A few employees had someone else do their dirty work:

  • “One person made his wife call to say he was not coming back.”
  • “The worker sent a text to his colleague and asked her to forward it to management.”
  • “An employee’s parents let the company know their son was resigning.”

Others did a disappearing act:

  • “A person went to the bathroom and didn’t return.”
  • “One worker packed up her belongings and walked out without a word.”
  • “Someone left for lunch and never came back.”
  • “A worker stormed out in the middle of a meeting without explanation.”
  • “The employee said she was stepping out to buy new boots, but was never seen again.”

And one worker took a more direct approach: “He just stood up and said, ‘I quit.’”

OK, your turn: Send us the strangest ways you’ve seen workers exit your employ.

For more HR News, please visit: A field guide to the weirdest ways employees quit their jobs

Source: News from HR Morning

How IT and HR Departments From Facebook Use Custom Apps

Hear how Facebook uses the Salesforce1 Platform to build critical HR apps for their employees. You’ll also get the inside track from our own Salesforce HR team as they share how IT has helped them grow and support our talent pool with mobile apps built on the Salesforce1 Platform.

Click here to learn more!  

For more HR News, please visit: How IT and HR Departments From Facebook Use Custom Apps

Source: News from HR Morning