Blog Articles And Comments

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.

1.Stay Informed via Reputable Experts

There is no acceptable plea of ignorance.  Laws are constantly changing and it is the employer’s responsibility to stay on top of it.  Government sites are improving, but state and federal governments often do not accept responsibility for creating clear communications via websites.  The courts look to reasonable care and actual workplace outcomes; however, complaints can be costly. Secure a source of compliance updates reasonably considered compliance “experts.”

2. Choose the Right Expert Source

Subrogate liability: find an expert willing to “take the fall” and back you. Compliance experts need not be legal counsel as long as they remain committed to advanced legal studies and ongoing compliance research.  HRS has proven it possible to attain 100% success in avoiding legal argument when compliance is deployed at the proactive stage. Reasonable care and due diligence are key. If you determine to use legal counsel as your “experts” and they have pulled you into the fire only to bill you going in and coming out, find new legal counsel or find an alternative remedy.  Insurance brokerages, payroll partners, TPAs and other HR related vendors offer valuable templates and perks for their customers.  Most, however, do not profess themselves as “experts” and non-compliant information potentially coming from them is on your plate, not theirs.  Several of these firms are proven to circulate bad information because it’s just not their problem. If you grab a tax advice flyer at the grocery store, you shall be challenged in holding the store accountable for bad information.  Several HR industry vendors hire HRS and other accredited experts to provide deeper quality risk management for clients. 

3. Reject Cookie Cutter Advice

Compliance is more about judgment than templates.  Non-profits can be a great source of templates and education; however, by the nature of being non-profits, they are ineligible to advocate for any individual client and can only serve the “membership as a whole.” Although we’ve caught one or two professing themselves in the “management consulting” field, please know this is categorically impossible. Take their information as one component of your research and adapt it to your company’s unique variables.  Call upon experts who can bring widespread case studies where you prefer assistance. There are some valuable non-profits, they can be highly beneficial; however, they cannot be a “one stop shop” for your compliance needs.  

4. Document Policies and Incidents

Do not let deniability work against you.   The courts look for evidence and reasonable care in forms of currently compliant employee handbooks, related documentation and proof of receipt.  For top risk management, an employer needs to prove the employee knew what was expected, received no confusing/contradictory messages, was capable of meeting expectations, knew the consequences of failure and chose to fail.  Consistency of enforcement without discrimination is critical.  Incident reports, valid job descriptions and clear compliant performance appraisals are each contributory toolsets.   Legal postings must be up to date and accessible to employees.  (Flat annual fee poster services can be a great partner here.) Maintenance and access to employee files must be controlled on a “need to know” basis according to HIPAA, EEOC, DOL, GINA and countless other emerging and ever-changing standards.  Consider a voluntary compliance review for risk management and to build “affirmative defense” through reasonable care.  Non-profits are ineligible by status to protect individual members/customers, so please do not deploy a non-profit organization in this capacity.

5. Train, Train, Train

Enforce a culture of lifelong learning and properly train employees not only in operations procedures but also in legal compliance to include anti-harassment, risk management, liability aversion, documentation and diversity.  While the employer is not ultimately expected to control each and every workplace action, the employer is held accountable to “reasonable care.”  Proper training averts risks, and the act of training builds “affirmative defense.”  Training by 3rd party experts brings additional reasonable care and promotes exceptional questions and learning. Remember most people are not classroom learners and bear learning threshold of 2.5 hours typicalmaximum.  Consider kinesthetic learning bullets. (Hint and shameless plug: contact HRS!)

6. Stay Current and Prepare for Change

The employer who has been non-compliant and has “never had a problem” is probably due.  Granted those employers are probably not taking the time to read this, invulnerability is a myth. Everyone is vulnerable.  Don’t waive it off. The government is fundraising.  Many people would rather fundraise than work.  Some lawyers are fundraising.  Insurance companies, like any businesses, will protect their interests.  It is your responsibility to protect your own interests as an employer.  Stay up to date with regular compliance reviews for practices and policies. The right 3rd party expert partnership is excellent “reasonable care.” Secure updates and review for compliance regularly. 

Please contact HRS for more information regarding answer desk, compliance review, handbook services, kinesthetic learning bullets to include anti-harassment, referrals to HR partners who rely upon actual experts and other risk management reasonable care programs.

Emerging from a recession, grabbing opportunity and surviving intense global competition, we cannot be fooled by the dangerous and misleading propaganda... "Work Smarter, Not Harder!" Statements along these lines when misinterpreted can only lead to disaster. The blueprint for success requires balance. 

Agreed it can be more effective to work smart than to work hard, in most cases both are necessary. In addition, “smart” can be a matter of misinterpretation in itself. “Smart” can only truly be judged by one who is “smart” in the capacity and criteria to be evaluated. “Smart” can be ill defined.  Nonetheless, "Work Smarter" should remain our dedicated target, we just need to lose the "Not Harder" component.

Through study of human work ethic, it is undeniable that many top performers equate “working hard” with “doing your best.” Anything short of doing one’s best is less than adequate. Therefore, working “hard” is always one of the goals. Where and how we channel our energies and how we balance and care for ourselves is a matter of personal choice and commitment.

Nations rich in socialism and suppressed middle class existence present global competition of both working hard and working smart in tandem. Those who wish to compete must rise to the occasion or lose the opportunity to fight another day. While the U.S. is not easily adaptable by history and infrastructure to the socialist principles which have been embraced by other nations, Americans must not think they can exist in a vacuum, especially after centuries of global involvement.

Those proven to offer judgment, accomplishment and commitment to excellence effectively draw upon the “Work Smarter, Not Harder” mantra with astute understanding that successful results require efficiency and sound judgment. These toolsets can lead to quicker, easier and more accurate positive outcomes, freeing our resources to accomplish more in the end.  The mantra works best for those already working hard. Those, however, lacking necessary work commitment are adversely impacted and misled by this mantra, using it as an excuse to retract effort.

This is an essential organizational development topic to be safeguarded by employee education, policies, practices and daily performance management. The ambiguity of related remarks is polluting team members’ understanding of workplace expectations and the blueprint to security and advancement. Consider this both a “call to action” and an opportunity of betterment for organizational leaders at all levels.

If you want to understand why anything happens in health care simply follow the dollars.

After having spent 35 years in the health care cost management field I am convinced that this is a true statement. The dollars influence and in some cases dictate hospital expansion, physician carrier choices, additional technology, administrative systems, insurance company plan designs, employer benefits and any other aspect of the health care field. This being the case, influencing the dollars will drive solutions to the industries problems.

As evidence of this, look at the expansion of PPO type plans over the past 20 years. Offering employees a benefit incentive to use one doctor or hospital over another has resulted in the largest change in buying habits ever recorded, with over 90% of today’s health care being provided through PPO type plans. Even HMO’s have re-packaged their services into PPO type plans.
There are three changes that can be made to the existing system that will reduce costs, significantly limit cost increases, improve quality, improve access, streamline administration and expand insurance coverage. All three changes are made in the private sector and require no government intervention or additional taxes.  

1. Price Transparency:

Today we do not know the true cost of even the most routine procedure (normal deliveries). As a result of multiple PPO, HMO and government contracts the price has been distorted. In Milwaukee 38 procedures represent 65% of the dollars spent at the hospital. The price range of each procedure among Milwaukee hospitals is at least 100%, with 300% and 400% variances common. Each hospital should be required to disclose the average private sector revenue for the top 20 procedures. Because this is an average confidential contract pricing is not disclosed.  

2. Change the PPO and HMO contracts:

In the mid 1990’s most hospitals were reimbursed a set dollar amount per day of hospital stay. As a result the cost increases for benefit plans in 1995 and 1996 was virtually “0” according to the Mercer study on health care costs. In the latter 1990’s competitive pressures and improved hospital negotiating skills resulted in a move to a percentage off billed charges. The control of the cost of health care was turned over to the providers. From the late 1990’s to about 2006 cost increases were in the low to mid teens each year. A return to fixed pricing is essential to controlling costs. Both hospitals and physicians should be reimbursed according to a fee schedule.

3. Change Benefit Plan Designs:

Price transparency and a change to schedules under contracts allow the designers of benefit plans to create plans that embrace the schedules. The cost of this service ranges from $1000 to $4,000. The benefit plan will pay $2,500. These are the providers who will accept this price or less.

4. Create Global Services:

Fixed pricing allows the formation of Global Services. Under these services all of the parts of a procedure are contained in a single contracted price. For example a Global surgery would include the surgeon’s fee, assistant surgeon (if necessary), anesthesia, radiologist, facility, drugs, tests and any other items required to provide that service. This is the way that health care is provided when benefits are not involved. Most cosmetic surgeries are presented to the patient set fees are patient (who is going to pay the bill) as a single fee with all the necessary parts included.
 
These four changes would result in an immediate cost reduction (fixed prices are used and providers have an incentive to control costs since it will increase their profits), improve quality (the main differentiation factor is now quality of care and patient satisfaction), improve access (if providers know they will be reimbursed they are more likely to offer services in areas they might otherwise ignore), streamline administration (more efficient administration increases profits) and expand insurance coverage (better priced insurance products can be afforded by more companies and individuals).
 
These changes can be implemented by the end of this year with no government intervention or expense. If consumers demand better benefit plans they will be delivered.
 
On the flip side the current proposal of a government sponsored “public plan” will increase Medicare taxes by 20% to 30% within two years.
 
The “public plan” is based on fees that Medicare has negotiated with hospitals, physicians and other health care providers. These rates are often 60% below billed charges and according to a recent study 20% to 30% below provider costs. The only reason that the provider community has been able to tolerate these low reimbursements is because they can increase their costs to the private sector. A study by the Lewin organization estimates that if the “public option” were offered 85% of the private sector would move to this option within two years because of the lower cost to companies and individuals. This would effectively kill private sector helath benefit plans.
 
If there is no private sector there is no one to whom costs can be shifted. Medicare would have to increase reimbursement to at least cost or hospitals and doctors would go out of business. This would require a 20% to 30% increase in Medicare reimbursements and a similar increase in Medicare taxes. It would also result in limitations on services available and probably result in hospitals and doctors opting out of the “public” plan with their services being available to only those who could afford to bay the bill.
  
We have the ability to control health care costs in a fashion that benefits patients, providers and payers. The question is do we have the resolve to implement the changes.

 

This article was contributed by Richard L. Blomquist, Esteemed Member of the HRS Advisory Board
Mr. Blomquist's Bio and Contact Info 

 

 

 

 

 

 

Sending wholehearted gratitude to those and their families who paid the ultimate price defending their country against socialism, the false propaganda in this country threatening blind allegiance and subserviance to socialist principles needs also to be defended against.  Some proponents of the universal health care movement are now using socialism labels… and this is an unnecessary extreme to create the much needed change.  Nations choose their political systems carefully and defend them tenaciously.  The US has fought tenaciously as well and shouldn’t easily abandon longstanding beliefs.

Those who think they understand socialism need to visit a socialist nation and spend time truly analyzing its affects.  Socialist principles can be altruistic and often attractive in theory.  Like many political systems, the rollout of socialism yields outcomes completely contradictory to its perceived intention.   In the US we are entitled choice, and in that, let’s please remember that for which our founding fathers and millions of US military have shed blood.  Hitler and Mussolini also are also connected with socialism.  Think carefully.

In the US please consider rejecting all programs cloaked with the word “socialism” and “socialized” unless you really believe pure socialism is the answer... and you believe the US needs to reject its longstanding principles and overturn that for which many have given their lives.   There are many things to attempt here in the US short of socialism before overturning our guiding principles in such an extreme.  Many believe through research that true socialism simply eliminates the middle class… making the rich richer and the poor poorer.   

Whether you are for or against more government intervention in our BIG health care problem, socialism is not the next step in progression… and please don’t let much needed hope for betterment allow such a tricky movement to sneak past the great people of this country. 

With a small percentage of “hired gun” CEOs being called out for ridiculous greed… and flaunting it, our legislative and media communities are creating a dangerous misperception which threatens not only the immediate workplace but also the US’s global position.  Simply stated, so many CEOs are not greedy, and these are the people who can really impact the economy. So, why do we rake them over the coals?  Having devoted my career to advocating sharing wealth among team members… proportionate to results contribution… I see how wrongful mistrust of the right CEOs negatively impacts workplace results.

 

This ivory tower perception of “me against you” in the employee-employer relationship tears down employee confidence and teamwork necessary for corporate bottom-line success.  While we all know, “if it bleeds, it leads” in the press, this concept sells publications only because people buy in to this concept.  Blame the media all you want (and I can be heard griping often), the media sells only what the public buys.   

 

Successful corporations are those that have endured hardship, challenge and downturn.  Discussing the resilience of corporate leadership can lead to positive outcomes.  Without discussing concepts the employee isn’t qualified to process, keep it audience adaptive.   Frame these discussions to build confidence, and don’t present them in a manner which presents weakness or creates fear.   We know overcoming adversity depicts strength while dwelling upon and empowering the obstacles depicts weakness.   The target is not to whine.

 

The problem is that most people are not the risk takers of entrepreneurism, so if we divulge hardship to those while we’re in it, they may become fearful to buy in and contribute when needed to do so.  There’s nothing wrong with being more conservative here, so we don’t wish to lose the engagement of this audience.  Risk takers “suck it up” and keep their sacrifices private.  When they don’t take a paycheck, when they mortgage their home to pay employees, and when they make lifestyle choices which sacrificed personal or social time, it’s typically not visible.  Later on, the Mercedes-Benz is visible and some people complain of greed.   Those who complain are those who didn’t make the same sacrifices and don’t get it. 

 

Many CEOs are not "silver spooners."  The plain truth is that most Americans have opportunity to be CEOs themselves and they choose not to.   They choose against the start-up risk, they choose the bar over the office or maybe they have family needs needs which become rightfully prioritized.  To choose not to be a CEO is not wrong.  Personally, I find the “pillow test” the ultimate test of success.  If you’re comfortable with what you did that day when your head hits the pillow, you are successful.   Yet, while emerging CEOs are choosing work over party time, the bars are filled with people complaining about their bosses.   Backstories are emerging right now, illustrating the personal sacrifices made by some of the great US CEOs who have created jobs, shown philanthropy and endured hardship which benefits us all.  Let’s not lump these good people in with the greedy few. 

 

There are some amazingly great employees out there!  It can be just as difficult to take direction as it is to give it, especially from some of the bad bosses out there.  Amazing employees will probably never realize the benefits of the new COBRA subsidy, as they will probably never see “involuntary termination.”  In most reasonable estimations,  over time less than 1% of corporate downsize decisions are not directly attributed to employee poor performance.  Most downsize decisions are selective.  Employees do have a choice. Absent union protection of service length vs. merit or bad management, top performers typically keep their jobs.  In many cases, better employee performance would have saved the company that need to downsize.  That being said, we hold this to be true:  it is the supervisor’s direct responsibility to ensure the right people are doing the right things.  It’s not a blame-shifting game.  Everyone has a role.

 

Right now we’re living in a country that penalizes those who create jobs and rewards those who are terminated for cause.  Many believe we live with an administration that seeks to deny free choice under the disguise of the Employee Free Choice Act.  Surely this is no way to compete.  Keep this discussion on the table without creating destructive conflict.  There are facts to be shared and teamwork to be built.   Clearly, government and media are tearing down this important sense of capitalism.  CEOs and organizational development leaders must counteract with the right amount of information needed to restore faith in organizational alignment.   Chances are, the employees who don’t currently buy in are not reading this, so they need to hear it from you!