How will Michigan’s Right to Work laws affect the workplace?

Michigan’s new Right to Work legislation, consisting of two bills, was signed into law by Gov. Rick Snyder on Tuesday, Dec. 11, 2012, but will not take effect until late March or early April of 2013.  Michigan is the 24th state to enact such legislation.

Both new laws make it illegal for employees to be required to join or financially support a Union, even if there is a union currently representing employees in a workplace.  However, contracts or collective bargaining agreements already in effect will not be affected by the new laws until the contracts expire.

Contrary to what the name implies, neither law creates the right to a job for any employee, but rather makes it illegal for a union shop clause (forcing employees to pay union dues) to be a part of a bargaining contract.

Proponents of right-to-work laws argue that workers should be free to join unions or to refrain from doing so.  Opponents argue that right-to-work laws restrict freedom of association, and limit the sorts of agreements individuals acting collectively can make with their employer.

Not surprisingly, this decision has created a political divide and Democratic leaders have promised to attempt to block the Right to Work legislation by litigation and political activity including recall efforts against legislators who supported the laws.

We’ll continue to monitor the situation and keep you apprised.  If you need advice about these issues surrounding collective bargaining or other human resources matters in your business, contact the experts at BCN Services by clicking here.

 

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Sue Kester, Manager, HR

What Are My Responsibilities as an Employer Under the Updated ADAAA?

Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job applications, hiring, firing, advancement, compensation, job training, and in other terms, conditions, and privileges of employment.

The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and labor organizations.

Almost 4 years ago, Congress passed the Americans with Disabilities Act (ADAAA) in an effort to further protect the rights of individuals with disabilities.  The ADAAA expanded the definition of “disability” under the ADA and gave employers greater responsibility for providing reasonable accommodations to qualified individuals with disabilities.

In March 2011, the Equal Employment Opportunity Commission (EEOC) issued regulations interpreting the new ADAAA, which became effective in May 2011.  Under these regulations, it is more difficult for an employer to successfully assert that a physical or mental impairment is not a disability- and employers must instead focus on requirements for making reasonable accommodations for disabled employees so that they may perform essential job functions. 

As recently as November 2012, the EEOC hosted a seminar where the Commission made clear that it will look at an employer’s failure to accommodate reasonable accommodation requests very closely in 2013 and beyond.

If you do not currently accommodate non-work related restrictions and require an employee to be released to return to work without restrictions following a leave, this practice will need to be re-evaluated. Your requirement may be considered a non-accommodation by the EEOC, which may determine that you are eliminating disabled persons from working or rejoining your workforce.

Based on this information, we have revised our system at BCN to ensure that we are not discriminating against disabled persons when they are rejoining the workforce from a Family Medical Leave (FMLA), or other personal/medical leaves. We now look more closely at persons who are ready to return to work, but have some restrictions, and how we can work with our clients on a case-by-case basis to accommodate those restrictions. We want to accommodate where appropriate, and what may have seemed an unreasonable accommodation in the past will need to be re-evaluated.

The Human Resources Department at BCN closely monitors legislation and pending litigation addressing these sorts of issues in the workplace, and how it may affect our clients and their business.  Call us at 800-891-9911 or click here if you have questions or we can assist in a specific situation.

 

 

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Kate Douglass, SR. HR Generalist

What is USERRA?

What is USERRA and how does it differ from the FMLA military expansion provision?  When does USERRA apply and when should you grant an FMLA leave relating to military service?

The Uniformed Services Employment and Reemployment Act (USERRA) was passed by Congress in 1994 to protect the employment and benefits of an employee who is a member of the armed services while he or she is on military leave. Points to remember:

  • USERRA entitles an employee to return to work at his or her “escalator position,” i.e., a position of comparable seniority, status, and pay to which the employee “would have attained with reasonable certainty” but for the absence for service.
  • Under the absence, an employer may not discharge a reinstated employee for one year from the date of the individual’s re-employment.
  • Employees who leave work may elect to continue with their COBRA-like benefits while on military service for themselves and their beneficiaries for up to 24 months.
  • Employees also have the right to be reinstated in the employer’s health plans when reemployed, generally without any waiting periods or exclusions except for service-connected illness or injuries.

Finally, USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services.

In 2008, the Military Family Leave Provisions of the Family and Medical Leave Act were expanded to protect the employment and benefits of employees who have a family member in the armed services who is called to or is on active duty and is injured, or who is in the military reserves or National Guard and has a qualifying exigency, or urgent need.

Points to remember:

  • Employees may use their 12- week entitlement to address certain qualifying exigencies
  • Qualifying exigencies may include: attending military events, arranging for alternative child-care, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.
  • Employees may take up to 26 weeks of leave during a single 12-month period to care for a covered service member who has a serious injury or illness incurred in the line of active that may render the service member medically unfit to perform his or her duties.

Both leaves are similar in that they protect the employee’s jobs and benefits.  The main difference is that USERRA should be applied when the leave is needed by an employee who is a member of the armed forces and the FMLA expansion applied when employees have a family member in the armed services who is called to or is on active duty and is injured, or who has a qualifying exigency.

BCN Services can offer assistance on these and other human resources matters, providing guidance to your company and your staff.  Please contact us here if we can help.

 

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Lisandra Quinones, HR Administrator

Employers Should Tread Carefully When Addressing Social Media Use

Amazing advances in technology are allowing business owners and employees to become more efficient and productive. But these advances bring more and challenging employee issues that impact our businesses.

One of the newest and more complicated aspects that employers must consider is the ever-changing case law surrounding the growing phenomena of social media. Agencies that enact and enforce employment laws are scrambling to keep up and the courts are interpreting, creating laws and adjusting the way we handle these issues in our businesses.

Use of social media is continuing at an exponential rate, increasing not only with employees under the age of 30 but with employees over 50 as well. Social media use for those 50 and older increased from 22 percent in April 2009 to 42 percent in May of 2010 according to the Pew Research Center’s 2010 Report on Older Adults and Social Media.

As business owners and managers, there are ways to limit your liability surrounding this issue. Some examples of things you should consider:

  • Avoid using social media to investigate potential employees. Information discovered about potential employees from social media can leave you open to claims of discrimination for race, religion, national origin, disabilities and other protected class items as well as factors such as arrest records (which are being increasingly scrutinized under the current federal administration). Recently it has been reported that some employers or prospective employers have asked for or demanded access to potential employees’ Facebook passwords in order to view their activities online. Government intervention in this matter has been swift, with legislation introduced and passed to prohibit this practice.
  • Avoid disciplining or terminating employees for complaining about the company or their manager on social media sites.Under the National Labor Relations Act, employees have the legal right to discuss (or complain about) their wages, hours and working conditions publicly. Disciplining or terminating employees for these activities can result in unfair labor practice charges for you even if you are a non-union employer! Additionally, if you terminate an employee for expressing an opinion, you could be required to return the employee to work with full back pay. As always, it is important to keep an open-door policy to allow your employees to share concerns with you rather than posting them online.
  • Don’t allow managers to respond to requests for employee or professional references via LinkedIn or other social media sites. References should always go through the formal request process under company policy.
  • Be proactive and put a social media policy in place if you do not already have one. There are a number of items that you can include in your policy. A sampling would include:
    • Prohibit employees from using company computers to post to social media.
    • Inform the employees that they are not allowed to speak for or represent the company on social media sites without written approval of the company.
    • Prohibit comments that threaten demean, discriminate or harass any employee, associate, or customers of the company.
    • Don’t allow employees to use the company name, logo, photos of company products, photos of employees or customers or photos of company property in social media postings.
    • Don’t allow employees to link to the company website from their social media postings.
    • Train employees on the social media policy.

BCN Services is diligent in monitoring the ever-changing employment law landscape in order to keep our clients compliant. As always, we are here to answer your questions or assist you with any questions, concerns or issues you may have. Call or contact us here.

 

 

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Jeff Walsh, Partnership Manager

Health Care Reform in Brief

The Patient Protection and Affordable Care Act (ACA), also known as Obamacare is moving ahead towards the ultimate goal of providing affordable care to all U.S. citizens. With the election over, insurance agents and employers are preparing themselves for changes that will affect them and their employees over the next several years. This briefing is intended as an overall guideline of what to expect in 2013, 2014, and beyond.

Some aspects to this new law are unfolding and will continue to do so. In items below where “awaiting further guidance” is noted, more information will be made available as we navigate these new waters.

This outline is intended as a “big picture” overview, but we will follow up with specifics regarding full-time vs. part-time employees, implementation, next steps and more. Please contact your Partnership Manager with individual concerns or questions and we’ll work through them as we go.

2012 – As we draw close to the closing of 2012, we will summarize the changes that have already occurred since the ACA was passed in 2010:

  • Dependent coverage up to age 26
  • Pre-existing conditions exclusionary period removed from all dependents and subscribers under the age of 19
  • Preventive services are covered 100% with no co-pays or deductibles
  • Lifetime dollar limits are eliminated as are annual limits on cost of essential benefits (Preventive Care)
  • Penalty increased to 20% for early withdrawal or use for non-qualified items from HSA accounts
  • Uniform summaries of benefits for all plans (Sept. 23, 2012)
  • Medical loss ratio rebates to be given for any plans not passing the claims to premium percentage requirement

2013 – Some changes will occur in 2013, but we’re still a year away from THE BIG changes that will go into effect Jan. 1, 2014. Here’s what to expect next year:

  • Patient Centered Outcomes Research Fee (aka Comparative Effectiveness Fee):
    • This technically goes into effect Oct. 1, 2012 which is the start of the federal government’s 2013fiscal year. For 2013, the fee will be $1 per average number of covered lives. For 2014 – 2019, the fee will be $2 with possible indexing for inflation. The fee will be paid by the insurance carrier for all fully insured plans (Oct. 1, 2012)

 

  • Reporting of cost of health insurance on 2012 W-2 forms:
    • For employers who issue 250 or more W-2 forms for tax year 2012, the cost of health insurance paid for the employee by the employer must be reported on the employee’s W-2 form. This box will be for the employee’s information only. The amount will not affect their taxable wage. (Jan. 1, 2013)
  • Medical Flexible Spending Accounts (FSA) limited to offering $2,500 per calendar year for eligible employees. (Jan. 1,2013)
  • Increased allowance for medical expenses as itemized deductions on taxes:
  • Increases from 7.5% to 10%
  • Medicare Part A tax on wages increases from 1.4% to 2.35% for individuals earning more than $200,000 and married couples filing jointly earning more than $250,000. Employers are not required to pay the additional 0 .95%.

2014 – Jan. 1, 2014 is the scheduled date for the heart of ACA to go into effect.

  • Jan. 1, 2014 is the date Health Insurance Exchanges open for business.
    1. Available to individuals and small businesses (50 or fewer full time/full time equivalent employees)
  • Individual mandate for all individuals not covered under an employer-sponsored plan to enroll in an Exchange health plan or pay tax penalty
  • Employers with 50 or more employees will be required to provide a health plan providing essential benefits or else pay a penalty of $2,000 per full-time/full-time-equivalent employee per year, minus the first 30 FT/FTE employees (awaiting guidance on definition of essential benefits)
  • Full-time employees defined as 30+ hours per week (awaiting guidance on full-time definition)
  • Full-Time-Equivalent employees calculated as follows:
  • Calculate the aggregate number of hours of service (but not more than 120 hours of service for any employee) for all employees who were not full-time employees for that month.
  • Divide the total hours of service in step (1) by 120. This is the number of FTEs for the calendar month.
  • Elimination of pre-existing conditions exclusionary periods
  • Increasing eligibility for Medicare (contingent on State compliance)
  • Elimination of lifetime and annual limits on essential health benefits (awaiting guidance on definition of essential health benefits)
  • Prohibition of health insurers denying individual coverage or increasing individual rates based on health conditions
  • Setting the maximum allowed waiting period for benefit effective dates to 90 days from the employee’s start date.
  • Emergency room treatment must be covered at in-network level, even if services are rendered in an out-of-network hospital or facility. Allows facilities to balance bill for services
  • Employee auto enrollment required for employers with 200+ employees

2018 – 40% excise tax on “Cadillac” plans. Guidance not provided at this time.

BCN Services will continue to monitor PPACA and provide guidance to your company and your staff. If you have any questions please feel free to contact your Partnership Manager.

 

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Frank Lewandowski, Partnership Manager

Am I Considered a Large Employer Under the Affordable Care Act?

The big question on every employer’s mind these days is “how will my employees and my business be affected starting Jan. 1, 2014, when the majority of provisions of the Affordable Care Act come into play?”

For small employers, the impact will be nominal.  Employers of less than 50 full-time and/or full-time-equivalent employees will not be required to provide health insurance for their employees, and they will not be charged a penalty.

Employers are anxious to know how they will be viewed by Federal law and if they will fall into the large employer category.  The number of full-time employees you have will be key in determining if and to what extent an employer may be responsible for penalties under the Affordable Care Act.

A business with 50 or more full-time employees that does not offer adequate health insurance will be required to pay $2,000 per full-time employee. This penalty will not be charged on the first 30 full-time employees.

You may consider reducing work hours for your current full-time employees to bring you below the 50 full-time employee threshold. However, it’s not that easy. Not only will full-time employees be considered, but also full-time-equivalent employees.  So how do you calculate if you’re a large employer?

Full-Time Equivalents for Determining Applicable Large Employer Status

The number of FTEs for each calendar month in the preceding calendar year would be determined using the following steps:

(1) Calculate the aggregate number of hours of service (but not more than 120 hours of service for any employee) for all employees who were not full-time employees for that month.

(2) Divide the total hours of service in step (1) by 120. This is the number of FTEs for the calendar month.

Calculating the Number of Full-Time Employees

The steps in calculating the number of full-time employees in the preceding calendar year, and thus whether the employer is an applicable large employer for the current calendar year, would be as follows:

(1) Calculate the number of full-time employees (including seasonal employees) for each calendar month in the preceding calendar year.

(2) Calculate the number of FTEs (including seasonal employees) for each calendar month in the preceding calendar year (as described above).

(3) Add the number of full-time employees and FTEs calculated in steps (1) and (2) for each of the 12 months in the preceding calendar year.

(4) Add up the 12 monthly numbers in step (3) and divide the sum by 12. This is the average number of the employer’s FT employees for the preceding calendar year.

(5) If the number of FT employees in step (4) is less than 50, the employer is not an applicable large employer for the current calendar year.

 

As 2014 approaches, BCN Services will be evaluating your employee count and offering guidance in determining if you’re a large or small employer under the Affordable Care Act.

If you have any questions please feel free to contact your Partnership Manager at 800-891-9911 or BCN Services athttp://www.bcnservices.com

 

 

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Amanda Cline, Partnership Manager