HR Morning News, Page 5 Category

There aren’t a lot of employers asking this question of job candidates. But after a recent million-dollar lawsuit, employers may want to consider doing so. 

The question: Did you sign a non-compete agreement with your last employer?

The reason to consider asking it: As it turns out, yes, you can be sued by a new hire’s former employer if A) the person breaks his or her non-compete, and B) you knew or reasonably should’ve known about it.

(Note: If you’re in an industry in which a lot of non-competes are signed, it may not be hard for another employer to prove you “reasonably should’ve known” about a non-compete.)

Employer taken to the cleaners

Medical device manufacturer Biosense Webster has to shell out $1.2M following a lawsuit brought on by the fact that it knowingly hired an individual who’d signed a non-compete with his former employer and had to break that covenant when he went to work for Biosense.

Meet Jose de Castro, who at the start of this story worked for one of Biosense’s competitors St. Jude Medical.

de Castro sold medical devices for St. Jude and was recruited by Biosense to sell similar products — and to similar customers.

At the time de Castro was under a three-year non-compete agreement he’d signed with St. Jude.

Biosense knew this but told de Castro that for a number of technical reasons it believed the non-compete was unenforceable. As a result, Biosense told de Castro that if he took the job at Biosense, it would provide him with a legal defense should St. Jude try to enforce the non-compete.

de Castro then left St. Jude for Biosense. Immediately after, St. Jude sued Biosense.

St. Jude claimed that Biosense was liable because it deliberately interfered with the non-compete.

Biosense tried to fight the suit by claiming — again, for technical reasons — the non-compete was invalid.

The ruling

A U.S. district court disagreed with Biosense and upheld the non-compete. It then ruled Biosense was guilty of willful interference and ordered it to pay St. Jude $47,680 to cover the costs associated with replacing de Castro. It also had to pay St. Jude $550,952 in lost profits.

And in a final blow, the court also ruled that Biosense’s conduct essentially forced St. Jude into litigation to enforce the non-compete. As a result, Biosense was ordered to pay another $662,018 to St. Jude to cover attorney’s fees.

The total bill for Biosense: $1,260,650.

Cite: St. Jude Medical S.C. Inc. V. Biosense Webster Inc.

With less than six months to go until the bulk of the ACA reporting deadlines kick in, the IRS has released new versions of the reporting forms as well as some important details on what’s expected of employers when it comes to the actual reporting process.  

First, here are updated versions of the four IRS reporting forms all applicable large employers (ALEs) should be very familiar with at this point:

• Form 1094-B— Transmittal of Health Coverage Information Returns.
• Form 1094-C— Transmittal of Employer Health Insurance Offer and Health Coverage Returns.
• Form 1095-B— Health Coverage.
• Form 1095-C— Employer Provided Health Insurance Offer and Coverage Insurance.

Then, there’s the deadlines that correspond with these reporting forms. A copy of the applicable Form 1095, or a substitute statement, must be given to each employee by January 31 every year and can be provided electronically with the employee’s consent. But since January 31 falls on a Sunday in 2016. The 2016 deadline has been moved to February 1.

Employers must file the returns with the IRS for the 2015 year by Feb. 29, 2016 (March 31 if filed electronically). Any employer filing at least 250 returns must file electronically. The deadline for future year’s returns will be Feb. 28.

Extra HRA obligations?

In the final instructions, the IRS addressed one major confusion point: Employers’ reporting obligations for major medical plans tied to a health reimbursement arrangement (HRA). Based on the draft instructions the agency had issued earlier in the summer, employers were worried there would be additional reporting obligations for HRA plan sponsors with fully insured health plans.

However, in the section titled of the instructions titled “Coverage in More Than One Type of Minimum Essential Coverage,” the agency laid those concerns to rest. According to the IRS, employers with fully insured plans with an HRA that have employees enrolled in both plans aren’t required to report the cover under the HRA. This is also true for firms with self-insured plans with HRAs.

Note: If a health plan and an HRA are sponsored by different employers, each employer will have to separately report the coverage. An example of how this would happen: An employee is enrolled in both his own employer’s HRA and his spouse’s employer’s non-HRA self-insured group health plan.

COBRA considerations

Another favorable clarification centers on COBRA offers. Under the final IRS instructions, COBRA offers made to terminated employees are not reported as offers of overage under any circumstances even if a former employee elects that COBRA coverage.

Not having to report COBRA coverage offers shields employers from potential Shared-Responsibility Reporting penalties.

This clarification is a reversal of the IRS’ initial guidance that said employers would have to report the offer of COBRA coverage based on former employees’ elections.

Finally, tucked away in the instructions are some useful tips on truncation or shortening of the Employee Identification Numbers (EINs) on the statements provided to individuals as well as what to do when there are missing taxpayer IDs.

The is likely one of the worst harassment lawsuits you’ll hear about this year. And it’s going to cost the employer in question a lot of money. 

A federal jury just awarded $17.4 million in damages to five former female employees of Moreno Farms Inc., a produce growing and packing operation on Felda, FL.

It was the result of a more-serious-than-usual sexual harassment and retaliation lawsuit filed by the EEOC on behalf of the women.

The suit accused two sons of Moreno Farms’ owner, as well as another male supervisor, of some pretty horrific and graphic acts of sexual harassment including:

• regular groping
• propositioning
• threatening female employees with termination for refusing sexual advances
• attempting to rape, and
• raping multiple female employees.

As for the retaliation charge, the three men were also accused of firing all five women for opposing the men’s advances.

The EEOC filed the lawsuit after first trying to reach a pre-litigation settlement via its conciliation process.

After a trial, a federal jury returned a unanimous verdict in favor of the five women, awarding them $2,425,000 in compensatory damages and $15 million in punitive damages. However, it’s worth noting that it’s possible those damages will be reduced to statutory damage caps at a later date.

In a statement released by the EEOC about the case, Robert E. Weisberg, regional attorney for the EEOC’s Miami District Office, said:

“The jury’s verdict today should serve as a clear message to the agricultural industry that the law will not tolerate subjecting female farm workers to sexual harassment and that there are severe consequences when a sex-based hostile work environment is permitted to exist.”

The EEOC’s statement also reminded employers that preventing workplace harassment through systemic litigation and investigation is one of the six main areas of focus outlined by the agency’s Commission’s Strategic Enforcement Plan, as is eliminating practices that prohibit individuals from exercising their rights under employment discrimination statues.

If your company is looking to take on or retain employees in any of these positions, get ready to pay more than you expected to. 

The following 20 jobs are far outpacing the national average for salary increases, which currently sits at 2.2%.

This list was compiled by job site Glassdoor, which provides job seekers with salary figures sorted by position, company and location to help them in their job search.

Glassdoor looked at position-specific salaries in 2014 and compared them to this year’s salary figures to find these 20 jobs for which pay is increasing the most (sorry, HR isn’t one of them):

1. Business systems analyst. Average pay in 2015: $83,300 — a 10% jump.
2. Security officer. $24,000 — a 7% jump.
3. Sales consultant. $49,008 — a 7% jump.
4. Pharmacy technician. $26,000 — a 6% jump.
5. Barista. $23,600 — a 6% jump.
6. Customer service manager. $34,780 — a 5% jump.
7. Certified nursing assistant. $25,000 — a 5% jump.
8. Financial analyst. $71,550 — a 5% jump.
9. Systems analyst. $80,000 — a 4% jump.
10. Research scientist. $85,000 — a 4% jump.
11. Programmer analyst. $79,638 — a 4% jump.
12. Personal banker. $41,861 — a 4% jump.
13. Branch manager. $63,500 — a 4% jump.
14. Research associate. $51,948 — a 3% jump.
15. Project engineer. $75,000 — a 3% jump.
16. Cashier. $18,000 — a 3% jump.
17. Cook. $20,000 — a 3% jump.
18. Web developer. $68,407 — a 3% jump.
19. Network engineer. $87,903 — a 3% jump.
20. Software engineer. $105,000 — a 3% jump.

This is a pretty good indication of how in-demand people to fill these jobs are. It also serves as a benchmark for your salaries — to make sure they’re in the ballpark of what candidates are expecting.

Glassdoor recommends its users use its salary tool to make sure they’re getting fair compensation. But employers would also be wise to use this tool to see what job candidates and workers are being told they should be making. This can help you prepare communications explaining why you’re offering more or less than a candidate or existing employee thinks they should be paid, should the issue come up.

Flexible scheduling options that allow employees to start their workday later may bolster a lot more than just morale.  

According to sleep expert and Oxford University Professor Dr. Paul Kelley, a traditional nine-to-five workday is only benefiting a very small segment of employees because that start time is too early for most people.

You heard that right — nine in the morning is too early to start work. Unless you’re in the 55-and-older demographic, Kelley says you’re fighting your body’s natural biorhythms by starting the workday closer to 10 a.m.

Optimal wake-up times

As reported in The Guardian, Kelley originally started conducting research to find out when school-age children experienced “true body awakening” and whether the starting time at most schools was optimal for those children.

That research uncovered the following body wake-up times for children:

• Up to age 10 — 6:30 a.m.
• Ages 10 to 16 — 8 a.m., and
• Ages 16 to 18 — 9 a.m.

From there, Kelley took his findings and estimated body wake-up times for adults. What he found: Adults lose sleep during the night and, as a result, don’t fully awaken until much later than the start of the traditional work day.

Then, around their mid-50s, people start to return to their 10-year-old awakening patterns, Kelley said.

Finally, Kelley drew some conclusions about why the nine-to-five schedule is still the dominant schedule of most workplaces: because it’s ideal for older workers — the employees who generally set the schedule in the first place.

Kelley identified the starting times that are most likely to translate to maximum efficiency for workers. These included:

• 8 a.m. (ideal start time for 50-somethings)
• 10 a.m. (workers in their 30s), and
• 11 a.m. (Millennials).

Flexible-scheduling bias

Of course, simply allowing workers to start work according to their optimal body wake-up times isn’t a feasible option for many companies.

Among other things, research has shown managers have a bias against employees who start their work day later than their peers. As HR Benefits Alert covered previously, a report by the University of Washington’s Foster School on flexible scheduling found that flex-time workers’ who work early hours are considered better overall employees by their managers than those employees who choose to work later hours.

This is the first report of its kind on flexible scheduling bias.

After conducting three separate experiments on managerial bias toward flexible scheduling, researchers came to the same conclusion: Managers view employees who start work earlier as more conscientious and more productive than their peers.

According to one of the study’s co-authors, Kai Chi (Sam) Yam:

Compared to people who choose to work earlier in the day, people who choose to work later in the day are implicitly assumed to be less conscientious and less effective in their jobs.

Based on the findings in this study, employees who choose to set their schedules to work later hours could wind up having their performance judged by factors that actually have nothing to do with their performance. And this type of bias could unfairly impact these workers’ pay and advancement opportunities.

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