For those who create jobs, a new year creates new opportunities and new threats. While we at HRS highly recommend each CEO to empower a fully functional HR initiative, we simultaneously advocate these 10 areas for highest executive support and visibility before giving up the reins. CEO to CEO… here is the drill-down!
Invest Only into Programs Supported by Data-Driven Metrics
While HR earned its seat in the boardroom by producing undeniable results on the Income Statements and Balance Sheets, avoid the assumption that all HR professionals grasp fiscal responsibility and know-how. Dubbed “The Pioneers of HR” in a 2015 Fortune Magazine spread, HRS knows exactly how thin the landscape was in prior decades, and we promise that more are boasting accolade than actually proven. While it’s possible to find a statistic to support any thesis you choose, be certain the statistic is valid and supports a meaningful takeaway for optimum outcome. Statistics can be developed internally or externally at the start, but should be benchmarked internally upon program commencement.
Ensure a C-Level Eye on Key Employment Law Changes
CEO’s must have a high level knowledge of these laws before properly delegating implementation and due diligence in 2016. Especially if a Chief Human Resource Officer (CHRO) is not in place, the items which cannot disappear from C-level are: handbook policies, ERISA Section 510, HIPAA, anti-harassment, trade secrets, ACA, FLSA, social media, independent contractors and joint-employer relationships, at a minimum. Top tier execs must ask the right questions and provide adequate support and empowerment to the right leaders of these critical initiatives.
Bring Salary and Hourly Practices into Alignment
With Department of Labor (DOL) proposed overtime changes still embattled until late 2016, a major hike in minimum salary threshold may create unlawful “ivory tower” practices where they previously didn’t exist. Become more mindful of benefits, payroll handling and policy discrepancies between exempt and non-exempt team members. Be proactive.
Engage Without Coddling
Attracting and engaging the right talent cannot be accomplished without employer branding and a precise amount of ethical bribery, in view of forecasted 2016 shifts. That being said, some novices out there are “over-coddling” and making a pure mess of things. Let’s not forget Maslow’s Hierarchy, ERG motivation theories and that truly happy workers have no reason to work at any stage other than self-indulging self-actualization. Give your employees a reason and the resources to attain corporate goals.
Keep HR and Accounting Completely Distinctive Functions at Lateral Vision
The keys to success in HR are absolutely neither a subset nor acquired along the accounting career path. These two critical functions each earn a boardroom seat, with critical communication between, and neither gets more leverage. While the HR effort cannot succeed without fiduciary vision and ability to assess proper fiduciary talent, the accounting effort can be tremendously successful with only limited communication from HR. In fact, too much information in the hands of the accounting team yields EEOC and HIPAA penalty risks.
Personality Tests Belong in the 1970’s, with Mood Rings
Beaten down as unlawful 40 years ago, personality tests are somehow re-emerging for those who didn’t previously see the lightbulb. Throw in ADA protected mood disorders and the Pregnancy Discrimination Act, and personality tests tee up some real risk. Hiring without proper assessment poses even greater risk. Behavioral assessment delivers far more lawful, meaningful and reliable findings; keeping it job-related, predictive and risk free. Best options are still Simulation Scenarios and In-Baskets.
Create a Politics-Free Zone
Wherever you sit, divisionary tactics and heated arguments are likely to be found. The workplace is ripe for passionate political arguments that threaten. Other countries already classify politics as protected. Arguing the Bill of Rights from every angle, the U.S. has begun protecting employees against harassment and discrimination due to political affiliation. While the political forum is likely to emerge downright uncivilized for some, an opportunity exists to actually capitalize on the problem by aligning your brand as a safe haven for those who work smart, work hard and respect others. DeBono’s Six Hats of Thinking, after all, requires perspective from all sides.
Train, Train, Train! Talent May be Easier to Develop than Find
As a guest professor serving 6+ top-ranked institutions, I promise that even the best are concerned with proper education for today’s workplace. The employer who delivers appropriate development tools gains the competitive edge and exponential return on investment. Success is contingent upon corporate training in not only operations, but also workplace behaviors, leadership, organizational communications, problem solving and legal compliance. Avoid “canned curriculum” and deploy a topic expert to deliver on-point discussion and applied Q&A. Not only is it nearly impossible to “pick the right employee off a shelf,” but employees meeting life’s basic costs are willing to give up 15% of immediate pay for development opportunity. While cash can still be king and broken promises crush credibility, consider a well-balanced approach as investment into both employee and employer.
Take HIPAA and Anti-Harassment to New Levels
2015’s Q4 reveals new privacy crackdowns, and government fines are being wielded about. Privacy lockdowns are a “bottom-up” approach. Meaning, if you’re a CEO… be sure to know very little about employee personal and medical lives, and be certain your leaders are trained to refuse all such information except on a “need to know” basis. Knowing the wrong things about your employees can backfire just as much as knowing too little. For lawful compliance, even an HR department may need 5-7 separate files per employee depending upon the structure, and many items should never leave HR’s gatekeeping. Department managers, accountants, IT and company-wide team members need updated HIPAA training and enforced compliance -- pronto. Hand-in-hand with HIPAA, and with interplay between, Anti-Harassment due diligence needs another escalation. With newly protected classes, increased tension and steeper penalties, the courts are busy, and the courts are expensive! 3rd party experts can provide “affirmative defense” certifications not available through internal or video-based training.
Choose Carefully Your Automation Levels and External Partners
A well-implemented HR automation system can exceed 300% ROI through vastly improved efficiencies and turnkey statistical decision tools. While this opportunity cannot be overlooked, some are going too far and reversing the benefit. Before we dehumanize human resources, 1) safeguard ability for audience adaptation and case-by-case judgment, 2) recognize that more keystrokes do not improve efficiency, and 3) lock down intellectual property where law allows. Inasmuch as HRS is recognized by the USPTO for world-deployed HRIS automation invention, even we know the boundaries. Don’t let your payroll and HRIS companies sell you the functions at which they fail. And finally, when choosing external partners, look for those who bring track record of success and extraordinary knowledge base, rather than just shiny new things that will become yesterday’s forgotten toys.
As experts in Organizational Development, Employment Law and HR since 1983, HRS empowers business owners and C-suite leaders with fiscally savvy performance management solutions, custom to each unique employer. HRS is available to deliver extraordinary assistance with each action item recommended herein. Representing a wealth of industries, HRS clients range 25-100,000+ employees, start-up and emerging to Fortune-ranked. Headquartered in Brookfield WI, HRS offers locations in Washington DC and Scottsdale AZ plus national satellites. For more information, contact us.
Jessica Ollenburg - Monday, January 04, 2016
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Susan Haise, Owner of Neroli Salon & Spa
and the Institute of Beauty and Wellness, leads with her heart and mind in symphony. While many business leaders find dangerous conflict of interest by mixing the two, Susan’s natural talents define a magnificent culture of trust, supported by a relentless commitment to education. Her passion and pursuit of excellence are compelling.
The keys to success for any employer are to create an aligned brand that delivers upon expectations and supports both mission and operations. Neroli and IBW are each positioned on quality, experience and education. Susan delivers to her team members exactly what she wants delivered to her clients and students. She “pays it forward” with astute understanding that environment, culture and experience are equally important to quality service and top level education.
Neroli’s mission… “To renew the spirits and awaken the minds of all whom we have the opportunity to touch.” Neroli’s culture… “We believe personal and organizational balance is the key to sustainable success. We believe in treating ourselves, each other, and the planet with care and respect.”
When the Affordable Care Act began peaking with questions, twists and heated controversy, Haise quickly called to action an open invite educational campaign for Neroli team members and IBW students. While most employers avoided dialog (except that mandated by the ACA itself), Haise deployed HRS to deliver an uncensored and unbiased third party expert forum, fielding team member questions on any ACA topic and promoting complete transparency into all sides of legislative and individual consumer impact. Both supporters and naysayers of the act attended. Grace in education and open minded inquiry were accomplished. Now two years since educational campaign commenced, Susan reports that every day navigation of the ACA has been easier for all.
Susan embodies the educational commitment of HRS, and we submit Neroli/IBW’s case study as a prolific example of education done right. True education depends upon discovery of opposing viewpoints with open minds. While we typically advocate against shining a light on a problem, in this case confusion and fear were the problem, and the employer shined a light on the solution: education and transparency. The program delivered exactly what team members needed to know and addressed questions they likely otherwise would not have known to ask…all while strategically supporting the organizational mission with custom curriculum. Ongoing resources were then available for updated information throughout the ACA’s journey to date. HRS further certified the educational campaign and ongoing commitment as employer “reasonable care” in compliance, facilitating additional written communications to the team. Haise comments…”We have successfully navigated the waters, and our team is comfortable today understanding their ACA rights and responsibilities specifically because of our educational campaign with HRS. They are aware and informed. They know information is accessible.” Where employers shut down information and behave "cloak and dagger," they lose employee trust. Once again, Haise optimized trust among team members. Trust is motivating, leading to top shelf employee engagement.
Employment law influences and often dictates workplace practice. As a precursor to the educational campaign, HRS facilitated the custom crafting of Neroli/IBW's employee handbook by consulting directly with Haise and her executive team to recommend policies which not only align with but also accentuate the brand. Follow up implementation training and on call consultancy were next steps.
While case and statutory law shape our recommendations, we typically recommend the handbook language educates employees as to how policies are deployed to uphold law and to protect workplace fairness and consistency. Inasmuch as we see some competitor legalese actually planting seed for complaint and disgruntlement, we advocate language which yields positive outcome instead. An opportunity exists to leverage compliance as a workplace benefit. Susan Haise adopted recommendations which are both comprehensively lawful but also precisely supportive of education and culture.
A leading businessperson who has not only mastered culture and brand but who keeps a keen eye, hour by hour, on the numbers which drive fiscal success, Susan is no stranger to the reality that financial acumen is the empowerment and sustainability of the ongoing mission. An award winning entrepreneur, Haise has created and sustained award winning businesses since 1993. Named among the “Best Places to Work” by the Milwaukee Business Journal for five consecutive years, Neroli Salon & Spa operates five popular locations, while the Institute of Beauty and Wellness remains the pre-eminent “go to” for top industry education. Both firms under Haise’s leadership have earned multiple industry innovation and business success awards and are said to have “changed the beauty industry.” And of course, as great leaders do, Haise shares the credit with her executive team.
As a trusted resource for employer case study and information, HRS reports and recommends the Neroli/IBW story as an example of “mission accomplished.” Certain this organization will not rest on its laurels, we look forward to the next chapter. HRS emphatically advocates a commitment to strategic education, adaptive to the learning styles of individuals and team demographics with custom curriculum to best support operational success and mission objectives. Handbook policies are equally important for expert custom crafting, while templates fall critically short of the goal. Haise’s mission for Neroli/IBW capitalizes on unique competitive edge and visionary innovation. Adopting status quo practice along any criteria would derail the mission and impede the noteworthy success.
HRS serves holistic management information and operations solutions to business leaders and HR/OD professionals. Areas of focus include HR, Employment Law and Organizational Development. Headquartered in Brookfield, WI, HRS delivers international reach with a local commitment to an audience of approximately 5000 employers. The highly decorated firm celebrates a fourth decade of success.
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Jessica Ollenburg - Thursday, July 23, 2015
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Make no mistake. HRS has been a substantial supporter of worthy nonprofits since our inception, and our Angel Wings
and HRS Gives Back
programs are fabulous examples. In the face of that, certain nonprofit associations, not specifically tied to greater good, are abusing tax-exempt status, betraying taxpayers and delivering dangerous advice. We warn to be wary.
A disreputable few nonprofits are beginning to cross the line and betray their status. In the world of HR, employer membership associations done well can be great places to swap case studies, find research, attain broad-based information and acquire non-custom tools. Those that promise to give advice, however, are in direct conflict with IRS tax code and their rights to the tax breaks they demand. Specifically, IRS tax exempt status prohibits a nonprofit from serving, addressing or advocating specific interests of individuals or individual members. This IRS covenant stands to prove that any nonprofit addressing the unique interest or custom need of an individual member is likely practicing tax fraud and is specifically ill-equipped to provide meaningful adaptive solutions of quality caliber. Some are delivering dangerously poor advice, resulting in six or seven-figure disaster for constituents. One such criminal was recently found distributing an employment application template unlawfully bearing a social security number field.
HRS continues to support, contribute to and partner with a wealth of professional associations relevant to our fields of study. You will find our logos and sponsorships proudly displayed. The best of them provide complimentary benefit to tax paying consulting firms and internal employer expertise. Similarly, IRS code also requests nonprofits to refrain from providing service available in the private sector market from tax paying employers. Any nonprofit that dramatically changes its service line in recent decades does not find itself exempt from responsibility to tax exemption covenants. Criminal behavior remains the outcome.
We at HRS embrace additional opinions on any topic of consequence. Our own boardroom approach to client problem solving demonstrates our ideology. Our multi-rater approach to assessment scoring further validates. With HRS, you already find holistic approach and several experts represented in any single proposed solution. As far as competition, we welcome competition. Today, seven critical disciplines fall under the HR umbrella, and the generalist needs specialist partners to get it done right. Having opened our doors before widespread HR demand at executive level, we welcome those who help us promote the critically expanded role of HR and those who keep us on our toes.
However, in a world where worthy nonprofits that save lives, advocate human rights and protect our kids are starving for government support and are suffering government cutbacks, we demand the non-legit nonprofits back away from the table. When nonprofits compete with tax paying firms, by definition and tax code, the nonprofit is not a legitimate nonprofit… in the wrong and abusing greater good. Tax breaks, grants and donations are sadly misguided when nonprofits dishonor their status. Buyers and taxpayers are called to use their voice and their buying power to encourage reform for greater good.
Jessica Ollenburg - Tuesday, April 07, 2015
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No matter the organizational headcount, C-suite executives must focus due diligence upon talent management, workforce ROI and legal compliance. For any labor intensive organization, the keys to success rely upon increased workforce productivity, astute risk management and surgically cut talent dollars. In doing so, idle time, legal costs, under-utilization and any such wasteful spending must be avoided. Expert solutions exist and are catching on quickly. Those not paying attention will be left behind.
Employment law is ever-changing and requires daily research. Beyond pure legal advice, legal compliance experts need to deploy business acumen, organizational psychology and aligned mission commitment to deliver best decision tools and implementations. Top executives are earning spectacular ROI and competitive edge by finding their own perfect internal-external partnership balance. Some are outsourcing it all, but better options exist.
The options promoted here do not involve the outsourcing of the employment relationship. For many, outsourcing employees can be counterproductive to ROI. Employees want to feel part of a team, and in today’s world of “pay without play” where some label work a “choice,” employees often deliver commitment only with reciprocity and incentive. In many environments, outsourcing employees can be an expedient method of deteriorating engagement and productivity. Keeping workforce on the payroll and outsourcing certain or all HR management, however, can be a collaborative win for the entire organization.
Third party expert operations have long been enjoyed by employers of all sizes and cultures. Employers under 200 are eligible to partner for all HR operations. Employers of limitless size find third party partnership extremely beneficial for talent assessment, education, compliance certification and change leadership. Most employers will attain betterment through a stable, highly competent and dedicated HR team, rather than revolving part-time talent with limited versatility. Employers who embrace external experts enjoy competitive edge and visionary foresight. Top quality is accessed with keen cost control, unbiased expertise, widespread case study and flexible utilization.
As we re-evaluate the HR team, workforce headcount only matters so much. For the average employer, the optimal team is comprised of functional management plus specialists and support under the direction of a Chief HR Operating Officer (CHRO), a right hand to the CEO. CHROs can be internal or external partners. An established CHRO already succeeding is always to be treasured and protected, as premier talent is undoubtedly rare and worthy of appreciation.
When selecting a professional consultant as CHRO, employers should seek quick adaptability, C-suite proven excellence, vast third party expertise and, of course, flexible utilization for cost control. HR practitioners for top partner firms never stop learning, growing, embracing and delivering new value. Among many other deliverables, they bridge gaps and engage workforce into the company’s mission. CHROs should facilitate a highly effective and well-aligned supporting team.
Delivering fiscal due diligence, the average cost of third party partnership is less than the average cost of internalized operations. Done well, spectacular ROI is expected year one and builds substantially in consecutive years. Through selection of the right partner organization, the HR team stays in place, benefiting from learning curve balanced with constantly emerging fresh ideas and case studies. Access to dedicated expert talent on demand without idle time is a steadfast cost reduction and quality optimization technique. Impartial third party experts avoid bias and deliver information with enhanced credibility. Everyone wins.
In some organizations, CHRO and CFO responsibilities are merged. This yields mixed results. Merging CHRO and CFO roles can produce conflict of interest or limited perspective; however, both CHRO and CFO need a clear grasp of fiscal prudence, organizational psychology and legal compliance. Ideally, each of these practitioners is ready to deploy as needed but never underutilized. Neither role should be subservient to the other.
Some fabulous internal HR leaders exist in today’s companies, and many of them are existing or future HRS clients. They call upon preferred partners for compliance, talent assessment, education, decision tools, case studies, affirmative defense and third party expertise. Astute business leaders recognize these top performers and keep them engaged with incentive and growth. Partner organizations deliver the tools and opportunities for such growth.
Cookie cutter solutions are abused, overused and rarely appropriate in HR. Every employer is unique across widespread criteria, including but not limited to company brand, culture, history, demographics, business model and keys to success. Accredited consultants deliver the ability to assess and tailor programs which plug into these unique paradigms. Those who devote only to a single employer at a time and/or “job hop” do not necessarily deliver the third party expertise necessary to capture success opportunities.
While the essentials are somewhat universal, today’s business leaders enjoy a healthy range of HR options. Whether enjoying premier internal talent, premier external talent or a custom blend of the two, HR is never a remedial function. The HR function should be in the hands of those who deliver extraordinary legal knowledge, fiscal due diligence, talent management, lifelong learning for leaders, policy establishment, organizational communications, conflict reduction, operational efficiency and forward thinking, to name a few. HR is an executive function which, done poorly, can decimate an organization… and when done well, delivers impactful ROI, business sustainability and critical risk management. Today’s top executives keep it eye-level and empower extraordinary partners.
Article by Jessica Ollenburg, HRS Chief Empowerment Officer. Summary Bio.
Jessica Ollenburg - Monday, May 05, 2014
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When employees know their bad or good acts won’t follow them, motivation and accountability are adversely impacted. An employer who wants the best of employees knows this and reinforces accountability through both seeking and providing employment references.
Today's employment background checking requires enhanced employer responsibilities to Fair Credit Reporting Act compliance. That being said, proper candidate pre-hire screening remains a due diligent essential. Employees who believe that terrible performance will be kept a "secret" are less likely to deploy adequate self-supervision. If we take the approach “What happens in Vegas…” with our employees, there is too little motivation for them to give us their best. We also miss our opportunity to allow our forgiveness and well-placed "second chances" to build loyalty and incentive.
In many states, employers enjoy specific statutory protection in providing employment references, as long as information is factual, non-subjective, and used in no discriminatory or otherwise unlawful manner. Despite this protection, many employers extend employee right to privacy to employment references. Employers need to carefully control information flow and train all managers in legal compliance. Failure to do so can result in legal consequences. That being said, a published “no references” policy is a hurtful substitute for compliance.
When seeking references, professional third parties can be far more effective, as the employer can trust information will be collected and used within full legal compliance. The structure, content and tone of inquiry are additionally key to validity.
Where an employer elects to forego employment referencing, both incoming and outgoing, we recommend not only reconsideration but also reasonable discretion. Advertising a "no references" policy is a "welcome" sign for bad workplace behavior. At a minimum, we recommend the avoidance of "no references" language in the employee handbook. Instead, we recommend language limiting who at the company is licensed to handle the inquiries. Many language options are available. Requiring electronic fax, forms or email is a great way to streamline and defer cumbersome activity.
Apprehension to “burn bridges” keeps many of us on our toes. We self-police, we filter and we decide accordingly. The workplace deserves this respect.
Jessica Ollenburg - Monday, January 06, 2014
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The Fair Credit Reporting Act (FCRA) and its effect on employment practices are finding new court scrutiny, case precedents and employer confusion. The following blueprint simplifies employer “need to know” information.
The Federal Trade Commission (FTC) enforces the FCRA. As of August 2013 the FTC’s Bureau of Consumer Protection advises employers to perform the following steps before conducting a background criminal, court or credit check:
1) Provide the applicant or employee a written stand-alone notice, outside of the employment application, which advises of the pending background check.
2) Gain written permission from the applicant/employee which includes forward moving checks as performed.
3) Certify compliance to the company from which you are getting the applicant or employee's information. You must certify that you notified the applicant or employee and got their permission to get a consumer report, complied with all of the FCRA requirements, and will not discriminate against the applicant or employee or otherwise misuse the information, as provided by any applicable federal or state equal opportunity laws or regulations.
Thereafter, according to the Bureau: “Before you reject a job application, reassign or terminate an employee, deny a promotion, or take any other adverse employment action based on information in a consumer report, you must give the applicant or employee:
• Notice that includes a copy of the consumer report you relied on to make your decision; and
• Copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”
Giving the person the notice in advance gives the person the opportunity to review the report and tell you if it is correct.
If you take an adverse action based on information in a consumer report, you must give the applicant or employee a notice of that fact – orally, in writing, or electronically. An adverse action notice tells people about their rights to see information being reported about them and to correct inaccurate information. The notice must include:
• Name, address, and phone number of the consumer reporting company that supplied the report;
• Statement that the company that supplied the report did not make the decision to take the unfavorable action and can't give specific reasons for it; and
• Notice of the person's right to dispute the accuracy or completeness of any information the consumer reporting company furnished, and to get an additional free report from the company if the person asks for it within 60 days.”
According to the Bureau, “Employers who use ‘investigative reports’ – reports based on personal interviews concerning a person's character, general reputation, personal characteristics, and lifestyle – have additional obligations under the FCRA. These obligations include giving written notice that you may request or have requested an investigative consumer report, and giving a statement that the person has a right to request additional disclosures and a summary of the scope and substance of the report. (See 15 U.S.C. section 1681d(a),(b)).”
Additional information is available at…
State and federal courts have recently set case law enforcing these notices and rights of appeal as related to not only agency checks, but also employment references and interviews. Several employers have found themselves embroiled in legal battle, settlements, fines and adverse publicity specifically over failure to notify candidates of their rights to be provided notice or appeal. A few of these found additional EEOC complaint by treating protected classes dissimilarly, thereby creating discrimination.
In light of these and other risks, it becomes increasingly important to manage incoming and outgoing background check data. Employers who publish a policy denying reference checks will continue to find a demotivation and “What happens in Vegas…” attitude among staff. Employers must control information without avoidance of information.
Employers cannot ignore responsibilities for candidate background checks and have been held responsible for negligence by ignoring reasonable care in hiring. Additionally, bona fide occupational qualifications (BFOQs) remain legitimate hiring criteria. Employers need to conduct these checks lawfully and fairly with consideration to comprehensive risk management.
Crafting of policies considers the staging of notice, probabilities of disqualification, hiring steps, differentiation in screening among company job descriptions and unique employer compliance strategies. HRS recommends the incorporation of full scale screening permission, most recently including job-specific Internet records research, into the crafted notice. HRS is available for custom crafting of expert policies and permission/notice forms according to unique employer needs and practices.
Jessica Ollenburg - Tuesday, August 13, 2013
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Update: Shortly after this article's publication, the US Federal Government announced a one-year delay of certain ACA mandates including the "pay or play" component. Visit our January 2014 update. As of February 2014, the component has been pushed back again. Stay tuned for more info.
As employers sift through immediate and forward moving impact of the Patient Protection and Affordable Care Act (ACA, PPACA or “ObamaCare”), we consulted with nationwide ACA experts to provide a quick blueprint of action items, FAQs and debunked myths. In respect to our expert unbiased objectivity, HRS employer clients have been asking us for credible and clear answers on this topic.
Preparation & Timeline
While some employers still believe they have until 2014 to make decisions, a more practical deadline is October 1, 2013, when health exchange notices need distribution to employees. Once these notices hit, employee questions will abound, and the risk of providing inaccurate or unsavory answers will impact employee retention, engagement, productivity and legal compliance. With employee access to health exchange, employer programs will find heightened scrutiny and explanations must be ready. In addition to impact upon talent resources, employer failure to meet ACA guidelines will result in substantial fine. While employers initially pledged to “pay” are shifting to “play,” due diligence is essential to “play.”
With minimum coverage covenants higher than ever before, minimum premiums are expected to increase as well. Employers are encouraged to anticipate this perception gap and to strategically educate employees as to the comparison between employer-sponsored and health exchange coverage. Summaries of benefits and coverage (SBCs) will not be enough to address this topic.
Matthew Weimer, Director of Employee Benefits Operations for Diversified Insurance Solutions, advises employers to prepare for employee surprise once the exchange opens. Weimer advises that many individuals are expecting exchange premiums to be lower than they actually will be, and an opportunity for an employer “win” is present.
Karen McLeese, JD, Vice President of Employee Benefit Regulatory Affairs for CBIZ Employee Services, Inc., advises employers of all sizes to “work with insurers, TPAs, benefit consultants, brokers and other advisors to ensure compliance with all ACA market reforms.” McLeese further advises to be prepared to deliver notices to all employees, not just those covered by the health plan, by October 1, 2013; to be familiar with single source market place applications; to ensure summaries of benefits and coverage (SBCs) are properly distributed; and to properly classify and count workers. HRS, Diversified and CBIZ are addressing these mandates by providing guidance as to crafting exchange notices, counting employees, educating team members and selecting plans to meet affordability standards.
Criticism, Fact Versus Fiction & Recent Developments
The relentless politicizing and profit taking on this topic have created mistrust and frustration among employers, so HRS has stepped in. We have no vested interest in insurance program sales. Our interest and reputation are tied only to accurate top shelf information and legal compliance standards. We have additionally invited adjacent field experts who have responded with transparency and integrity to our news campaign.
While arguments abound, opponents of the Act assert that the “Patient Protection” provisions can be mutually exclusive to the “Affordable” provisions, and employers need to address this concern. Some employees will undoubtedly be forced to buy more coverage than perceived necessary. Whereas the counter-argument is that these forced coverage levels will ultimately decrease overall health care costs, we cannot ignore and must address the initial sticker shock. Along that same line of thinking, Weimer addresses that many of his insured clients are already electively providing coverage levels that exceed ACA standards, and therefore, when employee premiums exceed health exchange premiums, the gap must be addressed to safeguard employee trust and engagement. Under affordability standards the employer must absorb the majority of premium costs, and therefore, while employees may pay higher premiums through the employer, it is imperative that they fully understand the value received and that the employer is absorbing the majority of excess benefits costs.
Employers were justifiably concerned by the initial ACA language which required employer review of “household income” in determining affordability. Not only did this pose an infeasible burden of costly administration but also a grave concern over privacy rights and employee discomfort. Affordability measurements have been thankfully addressed by updated calculation methods to include the W-2, rate of pay and federal poverty line (FPL) methods. These investigations are simpler, less invasive and consider only employee income rather than household income. As the federal ACA regulations shift substantial administrative burden to individual states, HRS urges employers to research state regulations and not just the federal. As the federal regulations do not protect spousal coverage, look to states for spouse and domestic partner rights.
Strategies & Caveats
Employers will choose plans based upon overall compensation scheme, labor intensity and workforce demographics. Benefits should be tailored to unique team attributes and perceived needs. Several HRS clients are employing primarily young, entry level, and therefore typically healthier teams who prioritize basic health but would rather receive other forms of compensation over benefits plan upgrades. For these employers we suggest consideration of a Minimum Value (MV) plan offering optional buy-ups. By deploying this strategy, the employees see premiums competitive to the exchange but also see their employers willing to absorb costs toward employee-elected upgrades. Employers who determine to trade plans down without proper employee education will likely find disaster rather than reward by this practice. “Design your health plan in such a way as to facilitate attracting and retaining your employees. Design the program to maximize personal engagement.” advises McLeese.
Some of the most common pitfalls will likely be linked to employer size, affordability and minimum value coverage. Small businesses (less than 25 FTEs) are offered conditional tax credits but not for business owners. Large businesses (50+ FTEs) will be fined for offering inadequate coverage. Minimum Value (MV) and Actuarial Value (AV) are impractical to calculate for most employers, and therefore working with insurance brokers and carriers you trust becomes more important than ever before. Safe harbor rules allow employers a small margin of error. Weimer advises employers to look to carriers for proper disclosure of MV and AV data. He tells us Diversified is overseeing these calculations for insured clients. McLeese adds that employers should properly classify employees as a new hire routine and to “work closely with a payroll provider who can assist in these recordkeeping requirements.”
Matt Weimer, Karen McLeese and HRS are all addressing proper FTE calculation methods. Weimer and Diversified have released a webinar rich with affordability calculators and employee counting rules. McLeese adds to these metrics a few cautions, including proper classification of employees versus independent contractors. HRS advises that improper 1099 classification is suffering more scrutiny and penalty than ever before, and not just with regard to ACA guidelines but also overall taxation and FLSA compliance impact. McLeese summarizes “Determine which employees are full-time, part-time, variable or seasonal. Decide whether to take advantage of a look-back (measurement) and stability period, and if you're not using a measurement/stability period, analyze status each month.” “Know your shared responsibility risk. How many full-time employees are offered minimum essential coverage? Is it affordable? To avoid a penalty risk, offer adequate coverage at an affordable rate. It is the offer, not the take-up rate, that matters,” continues McLeese.
McLeese recommends to “Establish a wellness program that promotes health and well-being; and ensure it is compliant with new ACA rules. If a wellness program currently exists, review it to ensure compliance with new ACA rules.” The ACA addresses wellness programs, and Weimer adds that wellness, HRA and HSA programs are under current review for their rightful position in coverage ratio calculations.
ACA guidelines will continue to address access and will require annual open enrollment for employer-sponsored plans. Employees will need to be offered health exchange notice within 14 days of new hire following group notification by October 1, 2013. Many employees will not be eligible to purchase insurance on the exchange but must be advised by employers as to availability for application.
HRS is addressing the Affordable Care Act with three new dedicated initiatives: 1) PPACA News Campaign, 2) Individualized Employer Workshops, and 3) Employee Education Tools. We remind that much of law is based upon case precedents rather than statutory language. Look for PPACA to be taking shape for years to come. Please consider us a resource, and stay tuned for more information.
Article by Jessica Ollenburg, HRS Senior Executive Consultant & CEO. Summary bio.
Matthew Weimer is Director of Employee Benefits Operations for Diversified Insurance Solutions. Matt’s extensive insurance industry knowledge and leadership helps to keep the entire benefits department abreast of legislation. He is Diversified’s Health Care Reform onsite expert and sits on the Board of Directors for the Independent Insurance Agents of Wisconsin (IIAW) along with several other industry and legislative committees. Matt has served on a number of advisory councils for the Wisconsin Office of the Commissioner of Insurance and still meets regularly to discuss state and federal insurance regulations. Matt holds a Bachelor of Arts degree in Business Administration and Marketing from Carthage College.
Karen R. McLeese, J.D., is Vice President of Employee Benefit Regulatory Affairs for CBIZ Employee Services, Inc., a division of CBIZ, Inc. McLeese serves as in-house counsel with particular emphasis on monitoring and interpreting state and federal employee benefits law. She follows and analyzes trends and provides information and technical support in response to technical questions regarding employee benefits. McLeese is a member of the Employee Benefits Committee for both the Kansas City Metropolitan Bar Association and the Missouri Bar Association. She is also a member of the Health Law Forum and the Labor and Employment Law Section of the American Bar Association. She has spoken professionally on wide variety of topics related to employee benefits, including HIPAA, COBRA, Welfare, Medicare, FMLA benefits. McLeese serves as an editorial board member for the publication Benefits Law Journal and is a graduate of Notre Dame and Duke Universities.
Jessica Ollenburg - Wednesday, June 26, 2013
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FMLA, ADA, Disability and PTO (Paid Time Off) leaves require proper sequencing in avoidance of fiscal waste, unlawful activity and costly confusion. While there are certain acceptable conditions under which paid leave can be substituted for FMLA, HRS recommends sequencing leave with clear consistent policies. As it is unlawful to penalize an employee in any way based upon his or her proper execution of legal rights or benefits, keep it clean and risk free. Beyond PTO and where permitted by law, leave concurrency should be clearly stated and practiced with consistency.
In terms of medical and disability leave, employers are strictly accountable to FMLA and ADA according to company size, location and unique definition of “undue hardship.” Employers must create a distinctive policy whereby employee receipt of disability benefits does not necessarily constitute approved disability leave. Consider the elective disability policies available. While these may be a smart purchase for employees, employers must be consistent with available leave and need not recognize these private purchases as employer mandates. A few sentences in the employee handbook and a consistent practice accomplish these goals quite nicely. Workers’ compensation lost time is treated in accordance with FMLA, ADA, DOL, EEOC and company leave policies.
Customize a PTO policy which addresses your company’s unique needs. Consider benefits for using PTO during company preferred times such as periods of less activity. Contemplate blackouts for PTO during bottleneck activities. Take into account the minimum and maximum length of absence preferable, and structure a written policy in advance accordingly. Having created a custom policy that appropriately addresses unique company wishes, many employers will find value in requesting use of PTO prior to any unpaid leaves. Remember that legally entitled leaves require certification. That is, when you have a finite amount of leave certified, this needs not extend the total leave amount, and everyone wins. Most employers will find the following sequence most beneficial: PTO >> FMLA >> ADA Extension (if applicable) >> Company Elected Medical or Disability Leave (if any). ADA extensions are still being shaped by case precedents, whereby 30 days beyond FMLA was recently determined a maximum.
Any company elected leave not legally mandated should be titled as such, creating clear distinction as to what is legally mandated and monitored and what is not. It is most definitely a lost opportunity to create company elective leave without proudly announcing this generosity of this benefit to treasured team members. This announcement can optimize engagement and employer brand equity.
The legal compliance professionals at HRS are on call for policy establishment and implementation guidance. Please consider us a valuable resource to any of the topics mentioned herein.
Jessica Ollenburg - Monday, July 30, 2012
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The Department of Labor tells us they are overwhelmed, understaffed and shifting additional burden to employers for employment law compliance. This can be a great deal for the average employer to undertake. HRS has taken some time to prepare a quick “how to” blueprint for employers.
P3, also called “Plan/Prevent/Protect” or “P Cubed,” will require every entity covered by the FLSA, OSHA, OFCCP, and MSHA to make written plans ("Plan"), create processes ("Prevent"), and test the processes with designated compliance employees ("Protect").
The following guidelines create a simplified and sustainable P3 protocol:
1. Stay On Top of Changing Laws.
Review not only government postings, but also secure a 3rd party compliance expert as needed and for annual overview. Our “overwhelmed” government states outright there is no government responsibility to educate employers. Enforcement is their responsibility, however, and fundraising is high. Case precedent law is just as impactful here as statutory law. While it is necessary to be a member of the Bar to litigate or serve as “officer of the court,” it is not necessary to be a member of the Bar to be a legal compliance expert. Full-time research commitment is essential for such expertise.
2. Avoid Copycat or Adaptation of Other Employers’ Handbooks.
Beyond the immediate intellectual property law threats, other employers are not recognized as experts. “Because Company X Did It” is not a reasonable defense. There are some terribly non-compliant practices circulating out there like “old wives’ tales.” Even policies that actually work for one company may not work for yours.
3. Build Legal Arguments from Day One.
Maintain records to prove either experts consulted on or approved your policies… or if self-constructed… save expert resources and statutory evidence as future “reasonable care” affirmative defense. Use scenario planning to create and document activities which defend the company against complaint. “Willful violations” pose the greatest threat. Negligence and lack of attention can be considered “willful” acts.
4. Protect Chain of Information.
Knowing what to keep and for how long as well as what not to keep are essential. Knowing who can have access and how to use this information without breaching privacy laws or risking discriminatory complaint are equally essential.
5. Follow Policy Outcomes.
With the overuse of “cookie cutter” policies, many companies are unaware that better policy options exist. Regardless of genesis for your policy, track outcomes to ensure it is working for you and not creating adverse impact or unlawful side effects. Designate specific individuals with reasonable ongoing access, and empower them with job description authority to monitor policy success.
HRS offers extraordinary legal compliance expertise, P3 design services and further information on any topic herein. Consider an HR certification audit as proactive P3 compliance. ROI is exponential.
Jessica Ollenburg - Monday, January 23, 2012
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Private businesses and employers in 12 states to most recently include Wisconsin are faced with the decision to allow concealed weapons carry on company premises. The argument against banning weapons lies largely in the statistics and in the liability. The argument for banning weapons lies largely in perception of safety and in the ability to attract, retain and engage a productive workforce comprised of people unaccustomed to concealed weapons carry and its perceived threats.
Legal counsel and insurance underwriters are largely recommending employer silence on this issue. Silence allows lawful carry without interference. The US Library of Congress reports crime reduction in every state enacting Concealed Carry. Violent crimes are reduced 5-22%. The most popularly referenced FBI report utilizes a 7% reduction statistic.
As a global firm, we have had the opportunity to work with many states across the nation prior to Wisconsin’s recent Concealed Carry enactment. With a second hub in AZ and service to the Scottsdale Chamber’s Public Policy Advisory Council, we are no strangers to public weapons carry and private business rights to “Opt Out.”
Wisconsin employers are inundating us with questions, and we are pleased to provide an extraordinary knowledge base here. At the time of this report, the state of Wisconsin is not protecting employers from liability if choosing “weapon free zones.” Specifically, if an individual is harmed because he or she was not allowed to carry weapon per lawful right, the company can be held liable. Additionally, it is argued that the posting of “no weapons” signs specifically attracts crime similar to a resident posting a sign “not monitored by security system.”
The argument for banning weapons lies largely in the perception of safety and records of specific incidents. While statistically it is argued that crime is reduced by arming law abiding citizens, the fact remains that with concealed carry acts, individuals who shouldn’t be licensed still manage to get licensed. It is also evident that individuals use poor judgment in what constitutes “self defense,” improperly trained individuals gain access to weapons and accidents happen. What stings in minds are images of Columbine, Virginia Tech, “going postal” and a wealth of related tragedies. For many these images outweigh statistical probabilities and facts. Most are not aware of this report… among 25,000 2009 murders, less than 1% were committed by concealed carry permit holders.
Businesses which allow concealed carry on their property are immune from liability arising from that decision. Employers who choose to allow concealed carry without interference will adapt by removing policies and handbook language which prohibit the carry of weapons on premises. However, we recommend substituting this language with the requirement that weapons must be lawful and licensed.
Employers who choose to “opt out” will create a “weapon free zone.” Employers may choose to prohibit concealed carry during work activities, and if they do so, then language must be modified and signs must be posted. The sign must:
• Be at least 5 inches by 7 inches.
• State that concealed or open firearms are prohibited in the building or on the premises.
• Specify the area to which the prohibition applies.
• Be placed in a prominent place near all of the entrances to the part of the building to which the restriction applies or near all probable access points to the grounds or land to which the restriction applies, as applicable, where any individual entering the building, grounds, or land can be reasonably expected to see the sign.
• Businesses should consider the universal “no” symbol of a circle around a picture of a firearm with a slash across the middle of the circle, indicating that firearms are prohibited.
An employer may not prohibit an employee, as a condition of employment, from carrying a concealed weapon in the employee’s own motor vehicle, even if the employee uses his or her vehicle in the course of employment or if the motor vehicle is on company grounds. Some employers are creating a policy that vehicles containing weapons on company premises must remain locked at all times.
HRS is active in helping craft and/or review employee handbook policies on this matter. For those who wish to “opt out,” the sample “Weapons Ban” policy to follow is one of the alternatives available. Customization may be expected.
Weapons Ban Policy Sample
The company complies fully with all applicable federal, state and local laws to include the Concealed Carry Act. Weapons and firearms of any type are strictly prohibited within company premises at all times. Company premise includes property owned, leased or controlled by the company. Company premises also include anywhere that company business is conducted, such as customer locations, vendor/associate locations, trade shows, restaurants or any venue visited for the purpose of business. Weapons include, but are not limited to, guns, knives or swords with blades over four inches in length, explosives, and any chemical whose purpose is to cause harm to another person.
Regardless of whether an employee possesses a concealed weapons permit or is allowed by law to possess a weapon, weapons are prohibited on any company property or in any location in which the employee represents the company for business purposes, including those listed above.
Possession of a weapon can only be specifically authorized by a company officer to allow security personnel or a trained employee to have a weapon on company property when this possession is determined necessary to secure the safety and security of company employees. Only a company officer may authorize the carrying of or use of a weapon within company premises. Any violation of this policy or federal, state or local laws which relate to weapons shall also result in immediate discipline up to and including termination.
Jessica Ollenburg - Thursday, December 01, 2011
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