The most notable change to the new Form I-9 is that it is now two pages instead of one. It also asks for additional information, including employees’ foreign passport information (if applicable), telephone and email address, and first day of employment.

The new instructions accompanying the latest revised I-9 are intended to be clearer (which is not a high bar) and should be made available to employees as they complete Section 1 of the Form (unless the employer completes the “Preparer or Translator Certification,” in which case the employer may complete Section 1 on the employee’s behalf) after the employee accepts the offer of employment but no later than the end of the employee’s first day of work. Be aware of form dates: USCIS or U.S. Immigration and Customs Enforcement (ICE) may compare the date of the employee’s signature in Section 1 to the date of the employer’s signature in Section 2 as an indicator of compliance.

Employees may elect not to provide their email addresses or telephone numbers in Section 1 (in which case they should mark the field “N/A”), but are required to provide their Social Security numbers if the employer is registered with E-Verify.

The new M-274 employer handbook offers updated guidance to on recordkeeping requirements. For instance, employers may be able to streamline their paper files by following guidelines on scanning and securely storing electronic copies of original Forms.

The revised I-9 Form and instructions are available here: http://www.uscis.gov/files/form/i-9.pdf.

The M-274 Handbook for Employers is available here: http://www.uscis.gov/files/form/m-274.pdf.

Recall that the last major update to the FMLA and its regulations became effective in January 2009, and added the two new major categories of qualifying leave applicable to military families: military caregiver leave and qualifying exigency leave. The latest Final Rule updates FMLA to implement amendments to its military leave provisions made by the National Defense Authorization Act (NDAA) passed in October 2009 effective for Fiscal Year 2010. Below are the highlights of what the newly issued regulations will change:

With respect to FMLA miltary caregiver leave, the Final Rule:

• Expands the definition of “serious injury or illness” to include preexisting injuries or illnesses aggravated in the line of duty and manifesting either before or after the servicemember became a veteran;
• Provides specific definitions of what constitute a serious injury or illness for a current member of the Armed Forces or a covered veteran, including four specific types of conditions applicable to veterans, any one of which may be sufficient;
• Defines a servicemember’s enrollment with the VA’s Program of Comprehensive Assistance for Family Caregivers as proof of a covered veteran’s qualifying serious injury or illness; and
• Allows healthcare providers other than those affiliated with the DOD, VA, or TRICARE to certify a servicemember’s serious injury or illness.

With respect to the FMLA’s qualifying exigency provision, the new Final Rule:

• Expands the eligibility for qualifying exigency leave to include employees with family members serving in the Regular Armed Forces (not just the National Guard or Reserves);
• Adds a foreign country deployment requirement to the definition of “covered active duty” for all covered servicemembers;
• Increases the number of days an eligible employee may take for qualifying exigency leave based on Rest and Recuperation from 5 days to up to a maximum of 15 days; and
• Creates a new qualifying exigency leave category for parental care, whereby a qualifying employee may take leave to care for a servicemember’s parent who is incapable of self-care.

The Final Rule also removes the forms from the regulations (they will now be on the DOL’s website), clarifies changes regarding the calculation of intermittent or reduced schedule FMLA leave, and makes technical corrections to the current regulations.

 In light of the odd hours and on-call time typically required of airline flight crews, the new regulations also implement the Airline Flight Crew Technical Corrections Act (AFCTCA), which amends the FMLA to establish special eligibility requirements specifically for airline flight crew members and flight attendants, as well as special rules for calculating leave for such employees.

 Whoever administers FMLA leave for your business should familiarize themselves with the requirements of the new FMLA Final Rule and work with employment counsel to update your FMLA policy. Consult the following links to learn more:

 A chart comparing the previous regulations to the Final Rule is available from the DOL here: http://www.dol.gov/whd/fmla/2013rule/comparison.htm.

 Required FMLA posters and certification forms are available from the DOL’s website here: http://www.dol.gov/whd/regs/compliance/ca_main.htm.

Among the employees exempted from the overtime requirements of the federal Fair Labor Standards Act are those workers who engage in certain creative endeavors.  If they meet the federal notion of a “creative professional,” they are not entitled to overtime pay (i.e., they are “exempt”); if they do not meet the regulatory criteria, they must be paid one-and-one-half times their regular rate for all hours worked in excess of 40 hours worked in a workweek (i.e., they are “nonexempt.”)  Hard and fast guidelines for determining who is sufficiently “creative” to be exempt under the FLSA do not exist; instead (perhaps fittingly), the Department of Labor’s regulations on the subject are open to interpretation.  Here are some tips for determining the exempt/nonexempt status of your creative professionals.

First and foremost, “creative professional” status is subject to the same two-part analysis also applied to those professionals in the “learned professional” (such as doctors, lawyers, and accountants) category—both must meet 1) the salary level test, and 2) the standard duties test. Like learned professionals, to meet the salary prong of the two-part test, creatives must earn at least $455 per week, paid on a salary or fee basis.

Next you must examine employees’ duties to determine whether they meet the second prong of the exemption test.  The federal regulations’ general rule for exempt creative professional employees states that their duties must “requir[e] invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.”  29 C.F.R. § 541.300(a)(1)(ii).  While the definition of “invention, imagination, originality, or talent” is the subject of some debate, the “recognized fields of artistic or creative endeavor” are generally what you’d expect: music, writing, acting, graphic and three-dimensional art and design, and occasionally fields such as culinary arts.

Federal Regulations Section 541.302 sheds some light on “invention, imagination, originality, or talent,” by contrasting this work with that which “primarily depends on intelligence, diligence, and accuracy.”  In an economy increasingly infused with marketing and media, however, this line becomes harder and harder to draw.  Traditional artists, like painters, novelists, or composers, would clearly meet the duties prong of the creative professional test.  Ironically, however, these “true creatives” are seldom actually bona fide employees on your payroll.

The following are illustrations categories of creatives who can be either exempt or nonexempt, depending on the exact nature of their duties:

• Journalists. Journalists are usually NOT going to meet the creative professional exemption category, but occasionally do. Many journalists work for smaller papers, news outlets, or news services where their primary responsibilities involve gathering and recounting public information and facts in a fairly routine, objective fashion.  Journalists whose work involves extensive investigation, analysis, or opinion (particularly senior editors at highly respected publications) are occasionally found to be exempt.
• Chefs.  Many, if perhaps most, food service professionals responsible for preparing meals in restaurants will NOT meet the creative professional exemption.  A few elite chefs who create the innovative menus and original recipes on the cutting edge of gourmet cuisine will qualify as exempt.
• Cartoonists. A cartoonist whose work is largely the result of her own ideas and imagination with only the most general input about the work’s concept or theme ARE likely exempt.  Those who prepare a cartoon for publication, however, like an inker, penciler, colorist, or letterer, are likely NOT exempt.
• Advertising. Don Draper – likely exempt.  Peggy Olson – possibly exempt.  Stan Rizzo – probably NOT exempt (ten bucks if you remember who Stan Rizzo is without looking)*.

These examples illustrate factors that weigh in favor of exempt creative professional status: the more independently the professional works, the more likely he is to be exempt.  The more abstract the category of artistic media, such as music or visual arts, the more likely the worker is to be considered exempt. Workers in fields serving more practical needs, such as news media or culinary arts are less likely to be exempt.

Be mindful of the fact that a professional’s talent or skill is often irrelevant to her exemption status—an employee may create exquisite illustrations, delicious delicacies, or brilliant campaigns and still fail to meet the two-prong test for creative professional exemption status.  It is a matter of whether the duties of the worker’s position qualify the worker for exempt status, not how well the worker preforms those duties.

Click this link to our contributor, Millennium Benefits Consulting, for the complete Mutual of Omaha article, “Understanding Life Insurance and Imputed Income”.

http://mbcllc.com/documents/UnderstandingLifeInsuranceandImputedIncome-MutualofOmaha.pdf

• What is a Bring Your Own Device Policy (BYOD), and should your company have one?
• What are the security implications of BYOD, and how can you address them?
• What privacy issues does BYOD raise, and how can you manage them?

If your employee handbook still contemplates pager use as an HR concern, it’s probably time to take a good look at how your employees are using their mobile devices at work (both at the office and elsewhere), and how your organization would like to manage that use.  The bright line between a cell phone and a computer is rapidly disintegrating, taking with it the careful rules and security measures companies have established to govern proper use, privacy, and confidentiality.

What is a mobile device? Sounds like an easy question, but it’s not.

Smart phones. E-readers. Tablets. Netbooks. Laptops. The list goes on—and tomorrow it will be longer. While a device labeled a “phone” may sound like one thing and a “computer” another, in truth, all will allow you to access the internet and email, text or instant message, download or upload software and data, make phone calls, and take or view photos or video.  Not only do these devices share capabilities, with the advent of wireless technology and cloud computing, all of these devices can also communicate with one another, and with desktop computers, televisions, cars, and even home security systems.  The point is—it’s important to realize the necessary scope of your device policy, which is likely broader than it’s ever been before.  Crafting a policy geared strictly for phone calls and falling back on your catch-all internet or computer policy will leave you with holes that invite security problems and jack up your tech costs.

Whose device is it?

The first critical decision employers should make with respect to their mobile device policy is which devices it should cover.  Employers clearly must (and do) create policies for employees’ use of office computers and internet connections, which can typically extend fairly easily to company-issued devices such as smartphones, laptops, and tablets.

But lets face it, everyone has a smartphone these days, and a growing proportion of people also have tablets that accompany them everywhere.  In order to address the risks that attend mobile computing and working, employers should be honest with themselves about whether and how much their employees are using personal devices for work.  Are employees linking their company email accounts with their smart phones and downloading sensitive data outside your firewall?  Do they forward client calls from their office landline to their cell, and call back from their personal number? If so, you face serious risk of jeopardizing confidential and proprietary information, or losing a client to a future competitor.

So what’s an employer to do? The impulse may be to ban personal devices for company business, thus limiting risk exposure to those within your direct control.  However, employers are finding this approach increasingly difficult, costly, and unpopular.  Buying devices and services plans is expensive and requires careful monitoring so that employees don’t incur costly overages.  And when overages (or worse—theft or damage) inevitably occur, managers have the unenviable task of deciding whether to discipline or demand reimbursement from the offending employee just for doing his job. Finally, anyone who has ever struggled to put down the crackberry knows employees with personal mobile devices will probably use them for work anyway, because, honestly, who can really help themselves?

Enter the Bring-Your-Own-Device Program.  It’s a healthy admission that employees are using their devices for work and gives them the freedom to, well, do what they were already doing, but within limits. It can also save you a lot of money by taking the onus of the device, service, and insurance costs off the company and shifting them to the employee, who in turn gets to use the device of her choice, on her terms (mostly). Instead of bankrolling the Blackberry, employers can offer a monthly stipend or benefit employees apply to their mobile device bill, which typically costs the company much less.

A Bring-Your-Own-Device Policy (or BYOD) cannot exist on paper alone, however.  Before you tell employees that you will pay them to use their personal mobile devices for work, you must implement a security protocol for mobile devices to protect the company as effectively as your in-office security measures.  Making agreement to the security protocol a condition of the employee’s monthly stipend is a good way to encourage compliance.  So what type of security do you need?  I should take this moment to disclaim any impression of tech proficiency, and recommend that you consult an IT security specialist for a detailed explanation of your options. Here are a few considerations to get you started:

1. Are you in an industry with stringent confidentiality regulations, such as banking or health care? If so the risks of accidental (or intentional) disclosure of sensitive information are much higher.  Investing in sophisticated mobile security measures, such as Mobile Device Management (MDM) (good), or a Virtual Desktop Infrastructure (VDI) (even better) allow employees to access office programs and data remotely and securely while minimizing or eliminating the need for downloading to a local hard drive.  Programs exist which, when activated, will remotely wipe a misplaced or stolen mobile device, which could prevent major security breaches.
2. Should you maintain control over sales team phone numbers to prevent a separating employee from walking away with your client? With a virtual tether to a mobile device (such as MDM), employees can use their company number for all their work calls, both in-office and on their mobile device. For a lower-tech option, many services like Google Voice offer virtual phone numbers, which the company can create at low cost and provide to employees for their mobile devices, so that separating employees will not have to surrender their personal mobile numbers to protect the company’s business interests.
3. What type of security do you use in the office? Let this be your guide: anything you need on your desktops—password protection, anti-virus software, automatic timeouts, etc.—you also need for mobile devices, perhaps beefed up even more.

Mobile device security measures are not free, but can often be implemented for less than the cost of buying the devices outright.  Which approach is right for you will depend on your industry, workforce, and budget.

Avoiding Privacy Pitfalls

Installing security protocols and allowing employees to conduct business on their personal mobile devices raises important employee privacy concerns.  Employees will likely have to hand over their devices at least temporarily to have security software installed, and once in use, company data could intermingle with the employee’s personal information.  Employers face a difficult conundrum: they are obligated to retain and produce information relevant to litigation, but face severe penalties for intercepting an employee’s personal electronic communications and other types of monitoring without consent under federal law.  While the law is still developing in this area, employers implementing a BOYD policy are strongly encouraged to obtain their employees’ consent for reasonable inspection of employee devices used for company business and any related data or software as a condition of participation in the employer’s BYOD program.  Employers should also work on developing a comprehensive exit process for personal mobile devices, including requiring departing employees to allow the company to remove company-provided software and data prior to the employees’ departure.  Employers should also obtain employees’ advance consent to remotely wipe the personal device in the event it is lost, stolen, or the employee fails to allow the company to remove sensitive information before separating.

Can we help? Stanton Law LLC can help you prepare an appropriately strict and/or lenient BYOD policy for your organization. Our rates are reasonable and our turn around times are great. Please give us a call to discuss.

Family Medical Leave (FML) is a benefit that eligible/covered employers are required to offer to all eligible employees.  FML was created by the Department of Labor (DOL) through the Family Medical Leave Act of 1993 (often referred to as “FMLA”).

THE PURPOSE OF FML

Family Medical Leave was designed to provide a means by which employees could balance their work and family life by taking unpaid leave for certain family and medical reasons.

WHAT DOES FML PROVIDE?

Family Medical Leave allows eligible employees of covered employers to take a maximum period of time away from work.  During a qualified leave of absence, employees have unpaid, job-protected leave with continuation of group insurance coverage under the same terms and conditions as if they had not taken leave.

B.             Employer Eligibility under the Family Medical Leave Act

The US Department of Labor (DOL) has set forth laws and regulations for Family Medical Leave.  Under these laws, there are “eligible employers” and “eligible employees.”  An eligible employer is defined as:

• a private sector employer
• an employer employing 50 or more employees for at least 20 work weeks in the current or preceding calendar year (within 75 miles of that worksite)

As a covered or eligible employer, an employer must comply with all rules and regulations set forth by the US Department of Labor regarding the Family Medical Leave Act and how it is to be administered.

C.            Employee Eligibility for Family Medical Leave

To be eligible for FML, an employee must:

1.   Have been employed by the employer for at least 12 months, and

2.   Have at least 1,250 hours of service during the 12-month period immediately preceding the leave

A Couple Notes on Employee Eligibility:

1.   The hours of service are counted for the 12-month period immediately preceding the leave and generally must be actual hours worked by the employee.  Hours the employee is on leave (paid or unpaid) do not count toward the required 1,250 total hours of service required for meeting employee eligibility for leave.

2.   Please note, employee eligibility may be retested or recalculated at the beginning of a new 12-month period or if an employee requests FML for a different reason in the same 12-month period.  For example, if an employee requests leave in June and is denied because he/she hasn’t worked the required 1,250 hours, the employee may request leave again next June and the total hours of work will be recalculated using the current 12-month period.

D.   Special Eligibility Rights for Military Service and Select Airline Employees

Uniformed Service Employment and Reemployment Rights Act (USERRA)

Pursuant to the provisions of the USERRA, time spent by an employee fulfilling his or her National Guard or Reserve military obligation may be credited toward the employee’s eligibility under the FMLA.

Airline Flight Crew Technical Corrections Act (AFCTCA)

The AFCTCA establishes a special hours of service eligibility requirement for airline flight attendants and flight crew members: an airline flight attendant or flight crew member meets the hours of service requirement if, during the previous 12-month period, he or she:

• Has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent); and
• Has worked or been paid for not less than 504 hours, not including personal commute time, or time spent on vacation, medical, or sick leave.

Airline flight attendants and flight crew members continue to be subject to the Family Medical Leave Act’s other eligibility requirements.

E.      Qualified Reasons for FMLA Leave

Eligible employees of covered employers are entitled to FMLA leave for:

• The birth of a child and to care for the newborn child;
• The placement of a child for adoption or foster care and to care for the newly placed child within one year of placement;
• Care for a family member with a serious health condition;
• Certain military-related reasons (see next section for more detail), or
• The employee’s own serious health condition (see next section for more detail) that makes the employee unable to perform the functions of his or her job.

Certain military-related reasons:

• Qualifying Exigency leave provides an eligible employee with up to 12 workweeks of job-protected Family Medical Leave in the applicable 12-month period to use for “any qualifying exigency” arising out of the fact that a spouse, son, daughter, or parent is a military service member on “covered active duty.”
• Military Caregiver leave provides an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered military service member with a serious injury or illness with up to 26 workweeks of leave during “a single 12-month period” to care for the covered military service member.

NOTE:  An employer may require an employee to submit certification supporting a request for qualifying exigency or military caregiver leave.

Serious Health Condition Categories:

The Family Medical Leave Act defines “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.  Serious Health Condition Categories include the following:

• Overnight/inpatient hospital care;
• Absence plus treatment (incapacity of more than three consecutive calendar days plus additional care);
• Pregnancy;
• Chronic conditions requiring treatments;
• Permanent/long-term conditions requiring supervision; or
• Multiple treatments for non-chronic conditions.

A few examples of conditions that can qualify an employee for leave (provided the specific criteria of one of the serious health condition categories are met) include allergies, Alzheimer’s disease, asthma, diabetes, mental illness, removal of cancerous growths, or stroke.

Not all conditions listed above will meet the criteria of an FMLA-defined serious health condition.  The employer uses the guidelines set forth by the DOL to determine whether a request for Family Medical Leave meets the approved criteria.

F.    Duration of Family Medical Leave

Qualified Employees can take up to:

• A total of 12 workweeks in any 12 months.
• Up to 26 workweeks in a single 12-month period to care for a covered military service member with a serious injury or illness.
• Intermittent leave may be allowed under certain circumstances.  Such leave may require additional medical certification from a provider.
• Spouses who are both FMLA-eligible and are employed by the same covered employer may be limited to a combined amount of leave time.

G.            Requesting Family Medical Leave

An employee may request Family Medical Leave by simply making a request verbally or in writing to the appropriate person at least 30-days before a foreseeable leave.  The employee will then be contacted via written notice within 2-business days of the request.  This communication is a FMLA-required specific notice that includes the next steps an employee must make in order to process the request.

H.            Employee Rights Under the Family Medical Leave Act

During Family Medical Leave, an employee has the right to maintain health coverage under the employer’s group medical plan.  The employee is responsible for his/her share of the premium payment during leave.  The employee will not lose any employment benefit that accrued prior to the start of his/her Family Medical Leave.

Upon return from Family Medical Leave, an employee will likely be returned to his/her original or equivalent position with equivalent pay, benefits, and other employment terms.

I.       Employee Responsibilities Under the Family Medical Leave Act

While the employer has certain rules and regulations that must be followed to administer FMLA, a qualified employee also has certain responsibilities in order to maintain the benefit of FMLA.  Specifically, an employee must:

1.   Plan his/her leave in advance of the arrival of a child or for treatment of a foreseeable serious health condition;

2.   Pay his/her share of insurance premiums within a 30-day grace period during FMLA leave;

3.   Schedule treatment of a serious health condition to avoid undue disruption of business;

4.   Provide notice verbally or in writing at least 30 days before a foreseeable leave for planned medical treatment for a serious health condition or the birth or placement of a child;

5.   Provide notice “as is reasonable and practicable” of the foreseeable need for “active duty” leave under FMLA;

6.   Update the employer as soon as possible regarding updates, changes or extensions of the dates of scheduled leaves;

7.   Provide timely and complete medical certification of a serious health condition, either their own or a family member’s;

8.   Supply periodic reports, if requested;

9.   Provide certification of fitness for duty upon return to work, if required.

Unfortunately, since 2009, complaints from service members about poor treatment at work before and after deployment have been on the rise, and a pair of recent Court of Appeals cases highlights the new prominence of the issue of service member harassment.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is designed to protect service members from employment discrimination, and in turn support the readiness of the U.S. Armed Forces. USERRA requires employers not only to rehire, but also to retain employees who return from active duty for a specific period of time. USERRA expressly prohibits “deni[al][of] initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of [veteran status].” 38 U.S.C. § 4311(a).

More generally, the statute enumerates the following purposes of USERRA:

(1)  to encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service;

(2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and

(3) to prohibit discrimination against persons because of their service in the uniformed services.

38 U.S.C. § 4301(a).

While many HR managers are by now familiar with USERRA’s specific prohibitions, confusion arose about whether USERRA’s broad anti-discrimination language also prohibits hostile work environment harassment on the basis of military status, a question at issue recently in both Dees v. Hyundai Motor Manufacturing Alabama LLC (11th Cir. 2010), and Carder v. Continental Airlines, Inc. (5th Cir. 2011), each of which reached different conclusions.

In Dees, the Eleventh Circuit declined to specifically determine whether the claim was available, but affirmed a district court decision acknowledging hostile work environment’s viability. The plaintiff alleged that his supervisors resisted allowing weekend National Guard training, made derogatory comments about the Guard, tried to force his co-workers to submit false disciplinary reports against him, and assigned him to harder, more dangerous work than his co-workers. Emphasizing USERRA’s overarching purpose, the lower court had pointedly observed that “assurance that employees cannot be fired on account of their military service is meaningless without assurance that the work environment will not be so intolerable that they will feel forced to quit.”

In Carder, the Fifth Circuit compared the language of other federal statutes that give rise to claims for hostile work environment, like Title VII (“terms, conditions, or privileges of employment”) to USERRA’s language (“any benefit of employment”). Plaintiffs alleged that their supervisors “placed onerous restrictions on taking military leave and arbitrarily attempt[ed] to cancel military leave,” accused them of running “scams,” and announced that “[y]ou need to choose between [your civilian job] and the Navy.” The court asserted that because Congress passed USERRA years after the landmark Supreme Court case acknowledging hostile work environment under Title VII, Congress’s failure to employ the exact same statutory language indicated an intent not to incorporate judicial interpretations recognizing the claim.

In an unusually swift and cooperative response, Congress passed the Vow to Hire Heroes Act amending USERRA on November 21, 2011. The legislation updated the definitions section of the statute in 38 U.S.C. § 4303(2) to specifically add ‘‘the terms, conditions, or privileges of employment” to the definition of “benefits.” In doing so, lawmakers made clear their intent to make claims of hostile work environment harassment on the basis of military status actionable under USERRA.

Employers should now be alert that hostile work environment harassment of service member-employees is unlawful, and a potential source of liability. Accommodating Reservists’ often-unpredictable work schedules puts undeniable stress on employers struggling to maintain their payrolls. It is important to bear in mind, however, that USERRA’s purpose is not only to benefit the men and women who sacrifice for this nation, but also to protect this country by maintaining robust military manpower. Doing our best to support service members in the workplace helps not just non-career military personnel, but all of us.

Have you ever had an issue with a chronically late employee?  You know the one.   He slinks in at 9:30 a.m. more than a couple of days per week, even though his official arrival time is supposed to be 9:00 a.m.  Does he provide a simple phone call that he’ll be late or even a half hearted apology?  Certainly not.  What’s worse, after his late arrival, he’ll spend the first 15 minutes drinking coffee and hanging out at the water cooler.  Pretty soon you’ll start to hear some rumblings from the rest of your team, and why not? This guy is coming in late and you, the awesome manager that you are, aren’t doing a darn thing about it.  What’s that you say?  He’s an exempt employee and he’s sort of getting his work done when he’s here.  So, it really shouldn’t matter if he’s late more than on time and gets most of his work done half the time- right?

Let’s be clear here. I not suggesting that you become a clock-nazi or that your micro-manage every employee’s minute-by-minute activity.  What I’m talking about here are those employees who abuse time by coming in late on a consistent basis and really, not offering much in the way of productivity. I’m speaking of when frequent tardiness becomes a distraction.  Most of the times, the problem isn’t so much that someone is late to work it is that he/she is consistently late to work and is a subpar employee.  Believe it or not, it affects the rest of the team.  If you don’t get this under control, pretty soon you’ll have other team members showing up whenever, and essentially daring you to say something to them. And you know what, they’d be right.  Remember, your policy is only as strong as the weakest enforcement.

Okay, then, how should you be handling chronic tardiness amongst your staff? Assuming that you have a fabulously wonderful/capable HR Department, you should probably get some advice from them first.  They should have firsthand knowledge about your company’s policies and procedures on time and attendance.  Beyond that, there are a few pointers that I can offer which should help the conversation with your wayward employee go just a little bit smoother.

#1.  Be SPECIFIC:

CLEARLY define your expectations to your employees-verbally first and then in any performance management write-ups you may have to issue.

The first time or two an employee is late may not be so annoying.  When it gets to occurrence number three, you’re dangerously treading into a performance management issue. However, in all fairness, you should say something way before you’re reaching out to HR to start the termination paperwork.

Call a meeting with the offending employee and have the guts to let him know what the issue is and what needs to change.  That should hold true to any performance issue you have, really. Having the guts to say something is better than not saying anything at all when there’s a problem.

#2.  Be FAIR:

Nothing kills morale faster than a manager who has a double standard.

If you’re going to hold one of your employees to the standard, then hold them ALL to the same standard.

Unless of course you don’t mind a mutiny on your team in the middle of a busy client season.

Your employees know who the habitually late offender is on the team.  Trust me, they may not be saying anything to you, but they know, and they’re discussing it amongst themselves.  And having someone who comes in late and doesn’t pull his weight will usually cost you much more than productivity costs.  It may cost you your best employees when they get tired of pulling the dead weight.  Good employees appreciate, and deserve, the firm disciplining of their sub-standard colleagues.

#3.  Be BRAVE:

Why brave you ask?  Well, it takes courage to call someone out on his negative behavior.  It’s uncomfortable and can be unpleasant.  Let’s face it, most people don’t want to be the one the “mean parent”. And honestly, you don’t have to be.  But, would you rather have a bad apple on your team making everyone bitter and resentful?  No, of course you wouldn’t. And again, if you have a HR Department that you trust, you should be able to seek the help you need on having these conversations. That’s what we’re here for.

Managing your employee’s Time and Attendance doesn’t have to be daunting if you properly handle expectations for employees.  If you are fair in your management style, specific in communication and brave in execution, it will go over better than expected.  If you do nothing, you’ll risk alienating your most valuable asset- your employees.

Employer Benefits Compliance – October 15^th Deadline

Medicare D Creditable Coverage Notification

If you are an employer who provides prescription drug coverage as part of your benefit package, you are required under the Medicare Modernization Act to annually disclose to your Medicare-eligible population whether the pharmacy plan is “creditable” or “non-creditable”.  “Creditable” means the prescription drug coverage provided meets or exceeds the Medicare Part D standards for the year.  In addition, you are required to complete an annual disclosure to the Centers for Medicare & Medicaid Services (CMS).   The notice must be distributed before October 15. 

HOW DO I DETERMINE IF MY RX PLANS ARE CREDITABLE OR NON-CREDITABLE

Your insurance carrier should conduct the testing and make the determination as to whether or not your plan(s) are creditable.  If you haven’t already done so, contact your carrier representative and request that a determination be made on your plans.  Once the determination is made, you must then create and distribute the appropriate notice to benefit participants.

WHAT DOES THE NOTICE STATE AND HOW DO I DRAFT THE NOTICE

CMS provides a template for the notices.  Click on the link below to find the Creditable and Non-creditable Coverage Notice Templates.  Simply insert your plan specific information in the document.

http://www.cms.gov/Medicare/Prescription-Drug-Coverage/CreditableCoverage/Model-Notice-Letters.html

WHO SHOULD GET THE NOTICE

Since it is almost impossible to determine which participants under your plan are Medicare-eligible individuals, we recommend sending the notice to all covered participants.

WHEN MUST THE NOTICE BE SENT

The notice must be sent prior to the Medicare Part D Annual Coordinated Election Period which runs from October 15^th through December 7th of each year.

HOW SHOULD THE NOTICE BE SENT

The notice does not need to be sent as a separate mailing.  The Disclosure Notice may be included with other plan information including enrollment and/or renewal materials.  You can provide one notice to an employee and all covered dependents, unless you know that a dependent resides at a different address than where the employee resides.  The notice may also be sent electronically.

HOW TO DISCLOSE CREDITALBE COVERAGE TO CMS

In addition to distributing the Notice to employees, employers are also required to complete an on-line disclosure form notifying CMS of the plans determination.  The form can be found at the web address below.

http://www.cms.gov/Medicare/Prescription-Drug-Coverage/CreditableCoverage/CCDisclosure.html

This disclosure must be completed on an annual basis and within 60 days after the beginning date of the plan year for which the entity is providing the disclosure to CMS. So, for example, plans with effective dates of 1/1/2013 must complete the online filing to CMS by February 29, 2013.

The instructions for completing this form, including screen shots, can be downloaded from this same page.

The new regulations modify three common FCRA forms.  Most notably for employers, the regulations revise the Summary of Consumer Rights under the FCRA.  The Summary is the standard notice employers and consumer reporting agencies (“CRAs,” the companies retained by employers to conduct background checks) must provide employees and applicants in a variety of situations, such as prior to an investigative consumer report or when providing a pre-adverse action notice.  A copy of the new form, which is practically indistinguishable from the old form, can be obtained here:  12 C.F.R. 1022, Appx. K.  Even if you can’t tell the difference, you still have to redo your FCRA process and use the new one.

The new regulations also modify the forms that CRAs must provide to their clients (e.g., employers) and to certain furnishers of information.  These forms, in case you’re for some reason interested, are here:  12 C.F.R 1022, Appxs. M and N.

I recommend that every employer obtain from each of their applicants FCRA-authorization to run a background check and, in fact, run a background check on each of their applicants before the applicant is hired.  Although the Equal Employment Opportunity Commission (“EEOC”) and several state agencies have lately come to look dimly upon employers’ use of certain kinds of background check information, verifying that an applicant is who they say they are and don’t have easily discovered skeletons in their closet is an easy way to avoid bigger hassles down the road.  Indeed, in each of the past two weeks, I’ve had to counsel employers on firing problem employees whom they would have never hired if they had the information available from a simple background screen.

The FCRA does not, in and of itself, prevent an employer from taking any adverse employment action (such as failing to hire), but simply provides the protocol to run a background check and the information that must be provided to an applicant or employee against whom action is taken.  Just as it is foolish (in my opinion) for employers not to run checks, it is equally foolish for employers to run background checks without complying with the FCRA’s (and now the CFPB’s) mandates.

For assistance with FCRA compliance, or any other best practice for not hiring bozos, axe-murderers, or other ne’re-do-wells,  please give me a call.  Not hiring the next person you have to fire always makes more sense, and I can help you do that legally.  404.881.1288 | todd.stanton@stantonlawllc.com