September 2015, Page 4 Archive

The Department of Health & Human Services (HHS) just issued proposed nondiscrimination rules that would be applied under the health reform law. 

After reading a press release titled something to the effect of “New ACA nondiscrimination rules issued,” we were reminded of the scene from Star Wars: A New Hope in which Obi-Wan Kenobi plays a Jedi mind trick on a stormtrooper and says, “These aren’t the droids you’re looking for.”

Why, of all things, did that pop into our head? Because, in fact, these aren’t the nondiscrimination rules we’re looking for.

Still waiting …

As you’ll likely recall, when the ACA was passed, the feds said it would subject group health plans to nondiscrimination rules similar to those that currently apply to self-insured group health plans. The rules would prevent health plans from discriminating against highly compensated employees by offering them benefits not open to their lesser-paid counterparts.

The problem is, the feds said the rules wouldn’t apply until official guidance had been released about them. So feds kept employers waiting and searching for the guidance. It was then expected to finally be released in 2014, but it was delayed due to some lingering questions IRS officials had.

And so we waited. Then, behold, nearly two years later “New ACA nondiscrimination rules issued.” But much like the lowly stormtrooper, we’ve been tricked.

What’s in the new rules

In a nutshell, the new HHS proposed rules look to snuff out all forms of race, sex, color, national origin, age and/or disability discrimination in the health insurance marketplace — a noble endeavor, but not the one we were looking for.

While some of these forms of discrimination had already been banned under the ACA, the new rules further clarify and strengthen protections for individuals.

For example, the proposed rule establishes that the prohibition on sex discrimination includes discrimination based on gender identity. Discrimination on the basis of sexual orientation would also be barred. This piggybacks on other federal rulemaking that made it illegal for federal contractors to discriminate against individuals based on sexual orientation or gender identity.

The proposed rules would apply to health insurance marketplaces, any health program that the HHS administers, and any health program or activity receiving funding from the HHS.

The rules’ protections would also be extended to individuals enrolled in plans offered by insurers participating in the health insurance exchanges. In other words, if your health insurer offers a plan on the exchanges, all of its plans are barred from discriminatory benefit designs or marketing practices.

HHS Secretary Sylvia M. Burwell said in a news release, “This proposed rule is an important step to strengthen protections for people who have often been subject to discrimination in our health care system. This is another example of this administration’s commitment to giving every American access to the health care they deserve.”

As for the other droids — ahem, nondiscrimination rules — we’re still waiting.

Last week, we carried a story about a company that was forced to pay $30,000 for the alleged harassment of a female field worker. Here’s a similar tale — but the numbers are considerably larger.  

Consolidated Edison Company of New York, Inc. will pay $3.8 million to a class of women workers who were subjected to sexual harassment and discrimination, New York Attorney General Eric T. Schneiderman and the EEOC announced.

The agreement requires Con Edison to reserve up to $3.8 million to be distributed among eligible settlement group members — as many as 300 blue-collar women workers employed in field positions between 2006 and 2014.

EEOC spokesman Kevin Berry said, “These women signed up for strenuous work when they took these important jobs — they did not sign up for demeaning job assignments, to be denied promotional opportunities, and to be subjected to rampant harassment, all simply because of their gender. EEOC will continue fighting discrimination in our nation’s workplaces.”

Con Ed provides electric, gas, and steam service to approximately 3.4 million customers in New York City and Westchester County.  Both EEOC and the AG’s office launched an investigation into complaints made by women working in field positions at Con Edison about ongoing sexual harassment and gender discrimination.

The women workers alleged that they faced widespread harassment by male co-workers and a hostile work environment based on gender and that Con Ed had failed to address this discrimination. EEOC also received complaints from women that they had been delayed or denied promotions from the entry-level general utility worker position to various next-level positions because of gender.

The women worked with men in the field in manholes, power stations and other positions involving physically strenuous activities and maintaining the public’s access to electricity. While working in such traditionally male jobs, the women alleged that they were:

• denied, delayed, and given subpar on-the-job training as compared to their male peers
• assigned menial, “make-work” tasks and isolated by male co-workers in group work settings
• refused or stonewalled when seeking admission to classes necessary for promotions
• not provided tools or safety gear in situations where male co-workers were supplied both
• denied adequate sanitary and private restroom, shower, and changing facilities
• subjected to disparate and excessive discipline as compared to male co-workers who engaged in comparable conduct
• given less positive performance evaluations than their male counterparts for doing comparable work, and
• denied overtime assignments despite eligibility under collective bargaining agreements.

The women further alleged that Con Ed failed to take effective action to improve or prevent such discriminatory working conditions and failed to meaningfully enforce its internal equal employment opportunity policies concerning gender-based discrimination, sexual harassment and non-retaliation.

The women claimed they faced retaliation when they complained to supervisors or to Con Ed’s Office of Diversity & Inclusion about their work conditions.

Under the terms of the settlement agreement, in addition to providing monetary relief to eligible settlement class members, Con Edison will:

• retain an independent consultant to evaluate Con Edison’s compliance with the terms of the settlement agreement
• retain an independent equal employment opportunity specialist to develop and conduct employee training
• institute improved policies and protocols concerning the investigation of discrimination and harassment complaints, and
• provide training to field supervisors on Title VII of the Civil Rights Act, with an emphasis on illegal sex discrimination and sex harassment.

Learn about the problem of identity theft, the risk to your employees and what you can do to help.

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You’ve got to be pretty tough to be the lone female roustabout on an oil field construction crew. But apparently there’s a limit to how much you have to endure.  

An Iraan, Texas oil field construction and services company will pay $30,000 and furnish other relief to settle a retaliation lawsuit brought by EEOC, the agency announced.

The EEOC’s suit, filed in U.S. District Court for the Western District of Texas, charged that Garrison Contractors, Inc. fired its only female roustabout, Elma Garza, after she reported being sexually harassed on the job.

Hired by the company in January 2012 as a dump truck driver, Garza spent most of her employment as the company’s only female oil field worker.  In this roustabout position, Garza worked side by side with her male co-workers fixing oil and gas leaks, digging ditches and cleaning heavy equipment.

EEOC suit claimed that during her employment, Garza was subjected to lewd comments about female organs and sex.  When Garza reported the unwanted conduct, the company fired her, the agency alleged.

In addition to monetary relief, the consent decree settling the suit also requires the company to:

• implement a written anti-retaliation policy to ensure that employee complaints are addressed while providing protection to employees from adverse employment action for lodging such complaints
• conduct annual training for all officers, managers, gang pushers and roustabouts for three years on the law against retaliation in the workplace, and
• post an anti-discrimination and anti-retaliation notice.

In a press release, EEOC regional attorney Robert Canino said, “Given the isolated nature of oil field work assignments, combined with the traditionally male makeup of these jobs, women may be vulnerable to offensive and harsh treatment if there is not a clear company message that harassment is not tolerated.

“A response that excludes female workers from the field by firing them is unacceptable and unlawful.  Good management operates to stop misconduct — not punish the person who brings it to light.”

Open enrollment season shines the spotlight on HR pros’ presentation skills. After all, it’s up to you to explain what your company’s benefits plan has to offer. Are you up to the task?

To help ensure you are, here are 15 common mistakes you want to avoid during benefits presentations (none of these are quite as disastrous as the dream where you’re presenting in your underwear, but they’re still pretty bad):

1. Turning your back to the audience. It can come off as rude. Even if you have to point to a presentation slide behind you, it’s possible to do so without completely turning around.
2. Only staring at one spot in the audience. This makes you look nervous, and it fails to get everyone engaged.
3. Avoiding eye contact. Good eye contact exudes confidence, engagement and concern. Avoiding eye contact makes you seem skittish.
4. Crossing your arms. It sends a subtle message that you’re closed off and defensive.
5. Standing in the same spot for the entire presentation. Not only does this make your presentation seem stale, it also makes you more likely to drift off mentally. Movement helps the brain stay alert.
6. Sitting when you should stand. There are times when it’s appropriate to sit during open enrollment presentations, like when you’re speaking to managers in a small board room. But if you’re in a large conference area, and all the seats are facing forward, you should absolutely stand (and move around). It makes you appear knowledgeable and engaged.
7. Bad posture. Hanging your head or slouching your shoulders can make you look weary and unconfident.
8. Placing hands on your hips. This gives off a hint of arrogance or impatience.
9. Repeating gestures … over and over. When you make the same hand movements again and again, in quick succession, it becomes very distracting to the audience.
10. Fidgeting. This is a dead giveaway that you’re nervous, and nervousness is distracting.
11. Playing with hair or clothes. Typically, presenters do this because they’re nervous, but onlookers see these as signs someone isn’t comfortable — either with themselves or with the material they’re presenting.
12. Not smiling. If you don’t seem happy to be there, employees won’t be. Plus, it prevents them from wanting to ask questions and engage in conversations.
13. Complaining. Of course, you don’t plan to complain about your benefits plan. Still, it’s important to remember that complaining — whether it’s about technical difficulties with your presentation or something one of your benefits providers did — makes you look negative.
14. Making excuses. It’s natural to want to make excuses for failings (perhaps you weren’t able to keep some popular benefits you offered last year). But it’s usually better to just take responsibility while explaining what happened.
15. Exaggerating. Obviously, you want to make your benefits plans sound as good as can be. But be careful not to exaggerate what they can do or how much money certain benefits can save employees. Also, be mindful that you’re not passing along opinions as facts.

No doubt, strong employee-boss relationships help drive a successful business. And employees who regularly spend time with their manager benefit from strong communication, collaboration and insight. But here’s the million-dollar question: 

Could employees spend too much time with their higher-ups?

The answer is yes, according to a study by leadership and training firm Leadership IQ.

The firm conducted a massive survey of 32,410 American and Canadian executives, managers and employees to determine how many hours per week employees should be spending with their direct leader.

It found workers who spend too much time with their bosses will often experience a drop in productivity, engagement and innovation.

What’s the cutoff?

The study said that employees should ideally spend six hours each week with their bosses. Three hours or less isn’t nearly enough, and much more than six starts to become counterproductive.

For example, any more than six hours sends the message to the employee that the boss:

• doesn’t trust the employee to do his or her job
• has a tendency to micromanage his employees
• isn’t willing to let the employee grow in his or her role and further develop valuable skills, and
• believes the employee might not be the right person for the job.

Bottom line: If a manager has to spend much more than six hours per week with an employee, than you’ve hired the wrong person.

Although it’s understandably tempting for managers to keep new hires close, doing so for a prolonged period of time won’t let them grow — and is sure to send them packing before too long.

First thing to do

Now it’s time to assess what’s happening at your company.

Sit down with your management team and find out how much time they spend with subordinates each week. If it’s more than six hours, try to find ways to bring that number down.

Remind them that more time spent with employees isn’t always better.

Orchestrating a great feedback session is as much about what you shouldn’t do as what you should. 

According to Suzanne Lucas, the Evil HR Lady (EvilHRLady.org), giving feedback improperly is as bad as not giving feedback at all.

Adding to the equation is the fact that many companies, during manager training, tend to focus entirely on what should be done and said in employee feedback sessions — rather than also training mangers on what costly actions and phrases should be avoided at the same time.

So Lucas shared in her always-excellent Inc. Magazine column 10 mistakes that should never be made when providing employee feedback.

Pass these abbreviated versions along to your managers (and go to Lucas’ column for a full breakdown):

• No. 10: Forgetting to say what you want. Don’t just tell employees what they screwed up. Tell them what you want them to do going forward.
• No. 9: Failing to document. Create a paper trail. It helps when you have to justify a decision. Document not only what the employee did wrong, but also what goals you set for them in the future.
• No. 8: Bringing up info that doesn’t matter. Lucas says if an employee misses a deadline, say they missed the deadline … period. Don’t say, “You missed a deadline because of your FMLA leave.” Comments like that have the makings of a retaliation lawsuit.
• No. 7: Only providing the big, annual review. Let employees know where they stand throughout the year – not in one big info dump.
• No. 6: Saving up complaints. Don’t dump a slew of complaints on someone all at once. It’s demoralizing. Plus, it waters down your feedback. Reason? Because now, instead of having to focus on correcting one thing at a time over a period of time, they’re focusing on fixing multiple things at once.
• No. 5: Failing to praise in public. Offering praise in front of someone’s peers is far more powerful than an “attaboy” behind closed doors.
• No. 4: Failing to give the good with the bad. If you only tell employees what they’re doing wrong, they’ll assume you don’t like their work and that they aren’t a good fit. As a result, they’ll look to move on.
• No. 3: Giving negative feedback in front of others. Public humiliation isn’t the way to bring the best out of people.
• No. 2: Showing anger. If you’re angry, take a moment to calm down. When you’re angry, you’re more likely to say something that you’ll wish you could take back — or that could get yourself or the company in trouble.
• No. 1: Yelling. Screaming at someone will only make the person more frazzled. Also, see No. 2.

Between Obamacare’s complex compliance challenges and the growing need for top-notch benefits to recruit and retain top talent, the demand for skilled benefits brokers has grown exponentially in recent years. So how can HR pros be sure their brokers have their back?  

Like anything in the HR and benefits world, it all comes down to doing some research on your company’s specific needs and checking to make sure the broker you select has the tools to take care of those things.

Whether you’re reviewing your current broker’s performance or looking to enlist the services of a new one, here’s a checklist on what your company deserves to receive from a benefits broker:

The basics

Does the broker have solid references?  Obviously, you want a broker with some industry experience. And that experience should translate directly into lots of strong references from satisfied customers. When asked, reliable benefits brokers should have no trouble providing an array of references from similar businesses in your industry and local area.

Does the broker have a comprehensive understanding of all plan designs? When it comes to health insurance, there are plenty of options for employers to choose from. And a skilled broker should have expert knowledge of all of them. From traditional plans to CDHPs to various self-funding options and everything in between, your broker should be able to tell you the pros and cons of all of these plan options for your company. You’ll also want to find out what methods the broker uses when recommending benefits options.

In addition to general plan design info, brokers should have a wealth of info on all of the health care carriers in your area, as well as apples-to-apples comparisons of their different price points and answer questions like: What are the differences between the costs and plan designs among the major carriers in our area?

Is there a good variety of different plan choices? On top of standard health-care coverage, a benefits broker should be able to assist you with an array of benefits options like llife insurance, dental and vision coverage, long-term disability and wellness options, among others.

Can the broker answer questions about federal and state regs? In the end, employers are on the hook for noncompliance with federal and state regulations. But that doesn’t mean your broker can’t provide you with guidance in this area. So when meeting with a potential broker, prepare a list compliance questions to gauge his or her expertise on federal and state regs.

Can the broker provide practical, real-world info on Obamacare’s impact on your workforce? This is a big one. These days, any reliable benefits broker should be able to go beyond just explaining what’s included in the Affordable Care Act. Your broker should be able to tell you how each major provision is likely to impact your company, with real-life examples you can pass along to employees and upper management.

Level of commitment

Once you’ve determined that the broker has a handle on all of the basics, you’ll want to make sure he or she is the right fit for your company. To that end, you’ll want to get answers to the following questions:

How dedicated will the broker be to your company’s specific needs? Benefits brokers should always be willing to put in the time that’s necessary to understand the specific needs of a company, so it’s important to ask what he or she is willing to do for your company.

This usually entails a broker looking at job descriptions, income levels, languages spoken and other employee demographics when it comes to determining the best benefits options for your company. You’ll also want to find out what strategies the broker has in place to determine your company’s top health risks, as well as tactics to limit your exposure to those risks?

Is the broker willing to participate? If your HR or benefits department handles the brunt of the benefits administration you may only want a broker who comes in for annual open enrollment — or even someone who can offer advice and suggestions remotely.

However, some firms prefer a broker who takes part in regular (quarterly or monthly) education sessions and handles data-management processes, so early on you’ll want to find out how willing a broker is to participate and take on various tasks.

How often does the broker check-in/what are his or her preferred communication methods? It doesn’t matter how qualified a broker is, if he or she can’t put in the time your firm requires, the relationship just isn’t going to work. So HR and benefits pros will really want to do their homework here. Find out what the broker’s preferred communication method is, as well as how often (weekly, monthly, etc.) he or she normally checks in with clients.

What type of cost-sharing and administrative help does the broker provide? Reliable brokers should be willing to help share in some of the cost of companies’ employee-education efforts and be willing to assist in claim administration efforts.