HR Morning News, Page 22 Category

Employee turnover is expensive and can be catastrophic to morale and customer service quality. No one wants to see their top talent walk out the door. But how can you keep retention high at your company? We’ve put together a white paper with some stats and advice to help you increase your employee retention rates and keep employees (and customers) satisfied.

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There are two main takeaways for employers from the Supreme Court’s ruling to allow the highly publicized religious discrimination case against Abercrombie & Fitch to gain new life. 

The takeaways are:

1. Employers can’t take an adverse action against an employee or job applicant when the motivation behind the action is to avoid having to accommodate one of the person’s religious practices. The Supreme Court ruled that employers have to explore possible religious accommodations when they have at least some idea that a person would require such an accommodation.
2. Employees and job applicants don’t need to explicitly state the need for a religious accommodation to trigger an employer’s obligation to seek out possible accommodations. Again, the High Court ruled all an employer needs is an inkling that a person would need a religious accommodation for that employer to then be required to consider accommodations.

Woman didn’t conform to ‘Look Policy’

The case involved Samantha Elauf, who applied for a job at the Abercrombie & Fitch clothing store in her hometown of Tulsa, OK.

Elauf wore a head scarf, known as a hijab, as part of her Muslim faith.

The company declined to hire her, claiming the scarf clashed with its “Look Policy” — or dress code — which banned head coverings.

The policy called for employees to have a “classic East Coast collegiate style.”

Elauf then filed a charge with the EEOC, alleging religious discrimination. The EEOC then filed a religious discrimination lawsuit against Abercrombie on her behalf.

The EEOC claimed the company refused to hire her due to her religion and illegally failed to accommodate her religious practice by creating a reasonable exception to its “Look Policy.”

In district court, the EEOC prevailed. It was awarded summary judgment and a jury awarded Elauf $20,000 in damages. The jury ruled that Abercrombie knew about her religious practice and refused to hire her as a result.

But Abercrombie prevailed in appeals court by claiming it didn’t have to relax its “Look Policy” because Elauf never asked it to do so — or even mentioned her religion. Abercrombie argued that Elauf needed to provide explicit, verbal notice of a conflict between the policy and her religious practice.

In siding with Abercrombie, the Tenth Circuit Court of Appeals vacated the earlier jury verdict.

The EEOC then asked the Supreme Court to hear its case, and the court agreed to.

‘Specific request not required’

In an 8-1 decision, the Supreme Court ruled in favor of the EEOC, saying Elauf was not required to make a specific request for a religious accommodation.

The court majority said there was enough evidence to show that Abercrombie knew she wore the head scarf as part of her religious practice and refused to hire her to avoid having to accommodate her religious practice.

As a result, the Tenth Circuit has been asked to rehear the case through the lens of the rational used by the Supreme Court.

The High Court’s ruling also stated that if an employer has an idea that an individual would need a religious accommodation, the employer is obligated to explore whether it could reasonably grant such an accommodation — and Abercrombie failed to do that.

Justice Clarence Thomas was the lone dissenter. He wrote in his opinion that Abercrombie’s “Look Policy,” on its face, was neutral — and, therefore, it couldn’t be used as a basis for a religious discrimination lawsuit.

Cite: EEOC v. Abercrombie & Fitch Stores Inc.

Does the EEOC have your email address? It’s going to want it. 

The reason: It’s converting to an all-digital complaint system. So, in the near future, employers will no longer receive paper notices when harassment or discrimination charges are filed against them.

Under the new system, dubbed the “Digital Charge System,” employers will be notified via email when an EEOC charge has been filed against them.

The email will contain a link to a secure online portal, through which employers can:

• view and download the charges against them
• review invitations to mediate and respond to charges
• submit legal representation info
• submit position statements, and
• otherwise communicate with the EEOC.

When?

The EEOC is currently in “Phase One” of its conversion to the digital system.

Currently, 11 of its 53 field offices are using the new system.

This includes:

• Charlotte, NC
• Denver
• Detroit
• Greensboro, NC
• Greenville, SC
• Indianapolis
• Norfolk, VA
• Phoenix
• Raleigh, NC
• Richmond, VA
• San Francisco

By October 2015, the EEOC expects all of its field offices to be using the new system.

If the EEOC doesn’t have your email address, it’ll mail a paper notice to inform you of any charges filed against you and provide instructions for logging into the portal.

What’s next?

Besides rolling the system out to the rest of its field offices, the EEOC also plans to also establish a secure portal for individuals who file a charge of employment discrimination.

Translation: It sounds like it’s about to get easier for employees to file charges with the EEOC and follow up on them.

Many employers rely on the services of a third-party to ensure their benefit plans are in compliance with the sprectrum of applicable state and federal regs. But a new report suggests one particular type of TPA just isn’t hacking it.  

The recent DOL Employee Benefits Security Administration’s (EBSA) report, Assessing the Quality of Employee Benefit Plan Audits, found that just 61% of audits conducted by Certified Public Accounts (CPAs) fully complied with professional auditing standards or had only minor deficiencies.

That means the remaining 41% (nearly half) of the audits the agency reviewed had major deficiencies. And those major deficiencies put $653 billion and 22.5 million plan participants at risk.

The report used a fairly large sample to arrive at those findings. The agency’s report looked at audits of more 81,000 employee benefit plans conducted by more than 7,300 licensed CPAs.

According to DOL Security Phyllis C. Borzi:

The existing patchwork of regulations and rules needs to be overhauled and a meaningful enforcement mechanism needs to be created. The department is proposing, among other measures, legislation that will fix these problems.

Specifically, the DOL is recommending that Congress update ERISA’s definition of “qualified public accountant” to include more requirements and qualifications that would improve the quality of plan audits.

The report also suggests that ERISA should be changed to give its Secretary of Labor the authority to establish accounting principles and audit standards to protect the integrity of employee benefit plans and the benefit security of participants and beneficiaries.

The CPA response

For its part, the American Institute of Certified Public Accountants (AICPA) took responsibility for the DOL’s findings and even offered some steps it was taking to remedy the problem.

One example: Early next year, the AICPA will launch an employee benefit plan certificate program so its practitioners can show their competency. And AICPA vice president for public practice and global alliances, Sue Coffey, said:

Our [AICPA} recently issued Six-Point Plan to Improve Audits will help our members stay focused on achieving the highest level of performance for financial statement audits. Further, our Employee Benefit Plan Audit Quality Center offers members best practice tools and resources that help improve the quality of audit engagement in this area.

An appropriate time and attendance system that meets your organization’s needs can help to eliminate and even prevent many, if not most, of the negative aspects of inaccurate and unreliable timekeeping. Maintaining accurate and reliable time and attendance information makes it easier to keep a handle on labor costs, increases the accuracy of payroll, and reduces administration in the human resources (HR) department, thus saving time. This white paper outlines the top benefits of a time and attendance system and the positive effect automating your time and attendance process can have on your organization.

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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?

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 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:

• WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (pdf)
• WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (pdf)
• WH-381 Notice of Eligibility and Rights & Responsibilities (pdf)
• WH-382 Designation Notice (pdf)
• WH-384 Certification of Qualifying Exigency For Military Family Leave (pdf)
• WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave (pdf)
• WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (pdf)