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The Supreme Court just interpreted the Pregnancy Discrimination Act (PDA) differently than some employers currently do. As a result, it’ll open up employers to more lawsuits. 

The High Court just ruled that if you treat pregnant employees differently from other individuals with similar work restrictions, you can get sued.

On its face, that sounds pretty reasonable and straight forward — so much so, in fact, that you may be thinking the PDA already spells that out.

Well, here’s what the PDA says:

“women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise.”

The problem is there’s more than one way to interpret that clause.

Here’s how UPS — the company involved in the high-profile case before the High Court — did:

It said it would only offer alternative work assignments (aka, light duty) to three groups of individuals. They are:

1. employees injured on the job
2. employees with a permanent disability under the ADA, and
3. certain drivers who’d lost their certification from the U.S. Department of Transportation.

So when Peggy Young, a truck driver who was pregnant and was given a lifting restriction, needed an accommodation to continue working, UPS didn’t grant her one on the basis that she was not injured on the job.

UPS claimed it treated her as it would any other employee injured off the job, thus complying with the PDA’s requirement to treat pregnant individuals as it would other similarly situated individuals (i.e., others injured off the job).

And when Young sued claiming UPS illegally failed to accommodate her lifting restriction two courts — a district court and an appellate court — sided with UPS and granted the company summary judgment.

Lawsuit given new life

The Supreme Court then decided to hear Young’s case and, ultimately, ruled that Young’s case should get new life in a lower court.

It said there was evidence to suggest that Young may have been the victim of discriminatory practices in which UPS treated non-pregnant workers more favorably than pregnant workers with similar work abilities/inabilities.

The High Court interpreted the PDA in a very different way than UPS and, most likely, other companies have.

It set aside the issue of whether a worker was injured on the job or not and simply said it is discriminatory to treat pregnant workers differently from other workers who have similar physical limitations.

New standard put in place

The Supreme Court then devised a test to determine whether a pregnancy discrimination lawsuit, like Young’s, should go to trial.

It said an individual could establish a prima facie case of discrimination (the standard a lawsuit must meet for it to proceed to trial) if the person showed:

• she was pregnant
• she requested an accommodation and was denied, and
• the requested accommodation had been granted to non-pregnant employees with similar abilities/inabilities to work.

The court then said if an individual’s case passed this test, the burden would be on the employer to show a legitimate reason beyond cost or convenience for offering the accommodation to non-pregnant employees but not pregnant employees.

If an employer could do that, the ball would once again bounce into the individual’s court, where all the person would have to show for her lawsuit to proceed to trial is that the employer’s policy placed a greater burden on pregnant workers than non-pregnant workers and the employer’s rational didn’t justify creating that burden.

What employers must do now

This ruling changes the game for employer policymaking.

Employers must now be wary of creating any type of policy that accommodates non-pregnant employees and fails to accommodate pregnant workers with similar work restrictions — like the one implemented by UPS.

The Supreme Court has made it clear through this ruling, that denying accommodations to pregnant employees that have been granted to other individuals with similar abilities leaves you wide open to a lawsuit, regardless of other caveats in your policy — like those distinguishing on-the-job injuries from other non-work-related injuries.

Tread carefully.

Cite: Young v. UPS Inc.

For more HR News, please visit: Supreme Court just made it easier to sue you for pregnancy discrimination

Source: News from HR Morning

Healthcare costs are on pace to increase at record lows this year. That’s the good news. The bad? This trend won’t last.

In fact, there are a number of trends – increasing drug costs, the ACA’s Cadillac Tax, etc. – that can have drastic effects on unprepared employers.

At the Mid-Sized Retirement and Healthcare Plan Management Conference in San Diego, benefits consultant Marybeth Gray spoke about the necessity of developing a long-term plan to prepare for these costs drivers.

Here are some of the best practices Gray cited in her presentation:

The big picture

1. Only offer a CDHP. Nearly half (48%) of employers offer a consumer-driven health plan (CDHP), but just 7% of firms offer this plan as their only option.

In 2014, CDHPs coupled with a health savings account cost 18%  less than a PPO, and 20% less than an HMO.

Plus, these plans can help employers avoid triggering the Excise Tax. Reason: Because high-deductible premiums – the determining factor for excise-tax calculations – are generally lower than other plans.

Making the switch to a CDHP-only workplace is a lot easier when employers make the move gradually over a two- to three- year period.

Gray suggests beginning the process with a letter from your company’s CEO, listing the total costs of benefits and spelling out the reasons for the move.

2. Control rising drug costs. Pharmacy drugs account for 25% of employers’ health cost increases, and it’s only likely to get worse with the surging growth of specialty drugs.

By 2016, eight out of the top ten drugs are expected to be specialties, which don’t offer identical generic alternatives. To prevent drug costs from spiraling out of control:

• Look to join a purchasing coalition, which exerts pressure to improve quality and reduce employer and employee spending.
• Always start with step therapy where lower-cost therapy is tested before using expensive options like specialty drugs.
• Stress quantity control, where workers ask for a small dosage of a new drug before committing to a 90-day supply.

3. Add a spousal surcharge. In 2015, 39% of employers are adding a surcharge. Over the next three years, 61% of firms will use this tactic.

4. Focus on chronic conditions. A very small percentage of employees (around 20%) account for 80% of employers’ healthcare spending. So preventing and managing chronic conditions (obesity, diabetes, etc.) must be a top priority

Lesser-known opportunities

5. Review your life and disability plans. According to Gray, this is a huge opportunity. Based on the current market, most employers should be able to negotiate lower premiums for life and disability insurance. Those savings can then be used to help cover medical spending.

6. Link disability data to your wellness strategy. When employers use the info about disability claims and employee absences to design their wellness programs, those wellness programs are more effective.

7. Use your data. Between medical and disability claims and biometric data, employers have a wealth of info at their fingertips. Healthcare providers should be able to format this data in a way that will be easier to budget for your healthcare costs moving forward.

Based on “Top 10 Strategies to Keep Medical Trend Under 5%” by Marybeth Gray as presented at the Mid-Sized Retirement & Healthcare Plan Management Conference in San Diego.

For more HR News, please visit: 7 critical health cost-cutters: How many do you use?

Source: News from HR Morning

Regardless of the size of the business, HR administration is a challenging job. But according to new research, HR pros at smaller firms have their own unique set of challenges — and rewards.

The folks at SCORE, a nonprofit mentoring organization for small businesses, recently released a detailed graphic of the challenges small firms face in finding and keeping employees happy.

Bringing in new blood tops list

The top challenge: Hiring new employees, which was cited by 42% of small business owners. Rounding out the top three were “growing revenues” (45%) and “increasing profits” (37%).

The SCORE report also revealed that social media will play a major role in small firms’ recruiting process moving forward. In fact, 94% of small business recruiters currently use or plan to use social media for recruiting.

 

Cite: SCORE Infographic

For more HR News, please visit: HR administration: More difficult for small businesses? [Infographic]

Source: News from HR Morning

HR pros may want to take a closer look at their employee handbook — and ASAP.
Why? The National Labor Relations Board’s (NLRB) General Counsel just released a massive report on employee handbooks (and other relevant policies).

Both union and non-union workplaces

Specifically, the report outlined handbook content that’s lawful – and that which is likely to violate the National Labor Relations Act.

The report, which includes examples and recent NLRB decisions, applies to all employers regardless of whether or not they have union-represented employees.

In general, when handbooks contain vague or overly broad statements, employers are setting themselves up for problems.

Here are some of the major handbook areas listed in the report as well as specific examples of what the NLRB considers overly broad (i.e., potentially illegal) and what it will likely find lawful, courtesy of the folks at The Employer Handbook:

1. Confidentiality rules. The feds make it very clear that employees have a right to discuss “wages, hours and other terms and conditions of employment.”

But the feds said it’s OK to have “broad prohibitions on disclosing ‘confidential’ information” to protect “the privacy of certain business information” if certain conditions are met.

Here are two examples of language the NLRB considers overly broad:

• Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”
• Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information…. Do not discuss work matters in public places.

On the other hand, here’s an example of confidentiality language that is lawful: No unauthorized disclosure of “business ‘secret’ or other confidential information.”

2. Leave restrictions. Because the NLRA puts the ability to strike as one of workers’ fundamental rights, any handbook language that could “regulate when an employee can leave work” can potentially get firms in trouble, especially if the it contains reference to “walkouts” “disruptions” or strikes. Here are two examples:

• Failure to report to your schedule shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” is prohibited.
• “Walking off the job …” is prohibited.

This language, however, is OK in the NLRB’s eyes: Entering or leaving Company property without permission may result in discharge.

3. Workers’ conduct toward management. The Memorandum reminds firms that workers have the “right to criticize or protest their employer’s labor policies or treatment of employees.” And it highlighted a number of cases where it firms handbook language clearly prevent workers from exercising those rights.

The NLRB considers this overly broad: “[B]e respectful to the company, other employees, customers, partners, and competitors.”

But this statement is lawful: “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.”

4. Employees’ conduct toward co-workers. In addition to the employee/manager relationship, the NLRB pointed out what type of language should dictate workers’ interactions with one another.

What to avoid:

• “[D]don’t pick fights” online”
• Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and avoid the use of offensive, derogatory, or prejudicial comments.”

What’s OK: “[T]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.”

The paid sick leave issue

While you’re reviewing the handbook, you may want to consider adding something about the growing trend of mandatory paid sick leave, if you haven’t already addressed this.

As HR Morning reported on previously, with the list of cities and municipalities that mandate paid sick leave growing each week, 79.4% of HR pros said they will be addressing this legal trend in their employee handbooks, according to a new study by XpertHR.

For more HR News, please visit: Employee handbooks: Feds spell out what you can, can’t include

Source: News from HR Morning