New OSHA system takes a global approach to classifying chemical hazards

When was the last time you saw the words “OSHA” and “harmonized” in the same sentence?  That’s what we thought too.

But as of Dec. 1, 2013, we all need to be aware of some upcoming changes about chemical hazards and OSHA’s new Globally Harmonized System, or GHS.  The changes are definitely for the better and the Dec. 1 date will not require much time or energy beyond some basic employee training.

That said, BCN Services’ clients should be aware of the following:

  • The Globally Harmonized System takes an international approach to hazard communication and provides world-wide agreement on classifying chemical hazards with a standardized approach to labeling safety data sheets.  (Material Safety Data Sheets will now be referred to as Safety Data Sheets).  The new system will provide a harmonized classification criteria for the health, physical and environmental hazards of chemicals.
  • One of the major drivers of this change has been the globalization of the world economy.  GHS establishes a standard “language” to understand the hazards of chemicals no matter where you are in the world or where the chemicals are shipped to or shipped from, which is a vast improvement towards safety.
  • You will gradually start to see new labeling.  Chemical distributors will no longer be able to ship containers that do not comply with new labeling as of Dec. 1, 2015 and chemical manufacturers, importers, distributors and employers must start using new labels and safety data sheets by June 1, 2015.  (BCN Services will provide more information as those dates approach).

Here’s what you need to do at this point

  1. OSHA requires employers to have their employees who handle hazardous chemicals and substances trained on the new label elements and safety data sheet formats by Dec. 1, 2013.  Examples of hazardous chemical and substances are:  asbestos, carcinogens, vinyl arsenic, inorganic arsenic,  lead, cadmium, benzene, formaldehyde, ethylene oxide, spray finishing using flammable and combustible materials, oxidizing gases,  gases under pressure, pyrophoric liquids/solids/gases.  If you do not work with such substances, this new standard may not apply.
  2. If this new standard does apply to any of your employees, call BCN Services at 800.891-9911, ext. 108 and we can set-up a 17 minute on-line safety course entitled “Globalize Your Communication” that will take care of your training compliance.  Upon receipt of a user name and password from BCN Services, visit our homepage.
  3. BCN Services will handle all record keeping for this OSHA-compliant training.
  4. Training can be accomplished individually or in a group setting with several employee’s taking the online course  together.  It’s your choice.
  5. To receive your user name and password, contact Danielle Knuth via email at dknuth@www.bcnservices.com.
  6. To discuss any questions you may have regarding the Globally Harmonized System, please contact Patrick Boeheim at 800.897-9911, ext. 108.

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Patrick Boeheim, Risk Manager

Federal tax ruling changes tax advantages and benefits for same-sex couples

On Aug. 29, 2013, The Department of Treasury and the Internal Revenue Service ruled on treatment of taxation for same-sex married couples, regardless of the couple’s state of residence.

The June 2013 U.S. Supreme Court ruling in United States v. Windsor overturned the Defense of Marriage Act (DOMA) requiring the federal government to recognize same-sex marriages equally to opposite-sex marriages for all federal laws and benefits, including tax advantages never before offered to same-sex couples.

The Supreme Court ruling does not require all states to recognize same-sex marriage.  States retain the authority of whether to recognize same-sex marriages, even if the couple is legally married in a state that recognizes them.  However, for federal tax purposes, all legally married same-sex couples, regardless of whether they live in a state that recognizes these marriages, will benefit from the federal ruling.

These tax advantages include treatment of benefit premium deductions for same-sex married couples under Section 125 of the IRS Code.  Prior to DOMA being overturned, same-sex married couples who participated in an employer sponsored health plan could not have their total premium contribution taken on a pre-tax basis.  The employee could contribute his or her portion on a pre-tax basis, but the difference between a “single” employee contribution, and the “two-person” contribution was required to be deducted after tax.  From 2013 forward, the premium contribution amount for a same-sex spouse from an employee’s paycheck must be taken on a pre-tax basis.  The same advantages apply to medical flexible spending accounts (FSAs), and Health Savings Accounts (HSAs).  Same-sex married couples now receive the same tax advantages including the ability to claim each other’s medical expenses against FSA and HSA accounts.

Employees who were in a same-sex marriage prior to 2013 and did not receive the same tax advantages as opposite-sex married couples may amend their previous tax filings within the IRS period of limitations.  (Generally, the period of limitations is three years from the date the return was filed, or two years from the date the tax was paid, whichever is later.)

The State of Michigan does not currently recognize same-sex marriage.  Employers may opt to offer “domestic partner” coverage for same-sex married couples, but it is not required.  If a BCN Services client opts to offer such coverage, we are prepared to follow the federal tax guidelines accordingly. We will also administer reimbursements from employees’ FSA accounts per federal guidelines.

Please contact your BCN Partnership Manager if you have questions and, as always, employees should feel free to call our Human Resources call center if they have questions about their coverage or benefit deductions.  Contact us at 1-800-891-9911 or visit us atwww.www.bcnservices.com or email hr@www.bcnservices.com.

 

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Frank Lewandowski, Partnership Manager

BCN Services stays on top of compliance issues for employers

Compliance can be a headache for business owners and managers. BCN Services is here to help.

But we need a partnership with you to get the necessary “i”s dotted and “t”s crossed when changes are made or considered.   Call us whenever you encounter these compliance matters so that we can assist you in the following areas:

  • Opening a new location:  Some local municipalities require city, county or school taxes to be withheld.  It is important for BCN to have each work locations properly geo-coded to ensure that taxes are withheld at the proper rate.
  • Hiring employee(s) in a new state:  BCN has experience operating in many different states, however, a minimum 10-day notice from clients is necessary when they begin work in a new state.  Registration and licensing fees are required along with many types of paperwork.  Additionally, each state has different workers’ compensation and employment requirements that must be taken into consideration.
  • Creating a new position:  When adding a new position to your staff, the screening process, physical requirements, job duties, and pay classification are all things to be considered.  Our HR professionals are always available to assist in this important decision-making step.
  • Changing an employee’s pay classification (hourly to salary):  It is generally not an issue to change a salaried employee to an hourly pay status.  However, the law is very specific about who can be changed from an hourly to a salaried position.  Job responsibilities, number of hours and amount of pay are all matters that are federally regulated.

Working together, we can expertly and efficiently manage the compliance burden. If you have questions or need assistance, contact BCN Services for guidance.

 

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Sue Kester, HR Manager

Landmark decisions affect social media in the workplace

Because use of social media in the workplace is not going away anytime soon, it is an employer’s responsibility to ensure distribution of an up-to-date Social Networking Policy in an employee handbook.

Clients of BCN Services have access to the most up-to-date policies based on recent litigation involving discipline for social media postings that are affecting this ever-changing landscape. Below are two of the most recent landmark decisions that are shaping what is an appropriate employer response.

NLRB decisions address personal social media

The National Labor Relations Board (NLRB), an independent federal agency that enforces the Act, first began receiving complaints in its regional offices related to employer social media policies and specific instances of discipline for Facebook postings in 2010.  More recently, in the fall of 2012, the board began to issue decisions in cases involving discipline for social media postings. Board decisions are significant because they establish precedent in novel cases such as these.

In the first such decision, issued on Sept. 28, 2012, the NLRB found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law. The question involved whether the salesman was fired exclusively for posting photos of an embarrassing accident at an adjacent Land Rover dealership (which did not involve fellow employees), or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; one week later, the salesman was fired.

The board agreed with the administrative law judge hearing the case that the salesman was fired solely for the photos he posted of the Land Rover incident, which was not a planned (concerted) activity and so was not protected.

In the second decision, issued on Dec. 14, 2012,  the board found that it was unlawful for a non-profit organization to fire five employees who participated in Facebook postings about a co-worker who intended to complain to management about their work performance. In its analysis, the board majority applied settled law to the social media case and found that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act.

Be cautious not to use social media websites in hiring

BCN cautions managers responsible for hiring to not use social networking web sites to assist you in making any employment decisions, specifically in hiring.

Employers viewing their employees’ or job candidates’ social-networking web sites may open the Company to claims under the employment-discrimination statutes or your state. This is the case especially if a decision not to hire is made immediately following such viewings that the employee or job candidate claims was because of a legally protected status or activity.

If you have a current employee handbook without an updated Social Networking Policy, please notify BCN’s Human Resources Department to include that in your next handbook order. If you do not have an employee handbook, contact us to develop one for you. Lastly, please contact BCN’s Human Resources Department with any inquiries regarding social media use in the workplace.

 

 

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Kate Douglass, Senior HR Generalist

Employee complaints relating to wage-and-hour claims rise 126% over 10 years

Employee-initiated Wage and Hour claims are on the rise in the U.S. In the past year the number of claims for wages has increased by 700 and over the past 10 years the number of cases has grown by 126 percent.

The U.S. Department of Labor Wage and Hour Division enforces Federal minimum wage, overtime pay, recordkeeping, and child labor requirements of the Fair Labor Standards Act (FLSA). WHD also enforces the Migrant and Seasonal Agricultural Worker Protection Act, the Employee Polygraph Protection Act, the Family and Medical Leave Act, wage garnishment provisions of the Consumer Credit Protection Act, and a number of employment standards and worker protections as provided in several immigration related statutes.

There are three major categories of investigations falling under the FLSA that have been increasing:

  • Employees classified as exempt who believe they should be entitled to overtime pay.
  • Non-exempt or “hourly” workers who believe they are not being paid for all of the hours they worked.
  • Restaurant and hospitality workers who receive tips and feel that they are not making the state or federal minimum wage when their tip income is factored in.

Do you have questions about business practices relating to exempt employee status?  BCN Services can help you determine whether or not an employee should be classified as exempt as well as what time is compensable to employees.  If you have questions, please contact us at 1-800-891-9911 or click here to be directed to our contact us page.

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Alicia Jester, Manager-Benefits and Payroll

EPLI: What is Employment Practice Liability Insurance and why do I need it?

If you are a PEO client of BCN, your company is provided with employment practice liability insurance (EPLI), a benefit that may not be used every day, but is important nonetheless.

This specialized insurance is designed to protect against losses incurred in litigating and settling wrongful employment practices liability claims. It covers such things as discrimination, breach of contract and wrongful discharge suits, which usually are not covered by general business liability insurance.

In today’s business world, the threat of being sued is an everyday reality. The dangers are even more real if your company doesn’t’t have a dedicated human resources department or formal training to deal with myriad laws, rules and regulations that exist to protect employee rights.

Statistics show that in a bad economy employment lawsuits increase dramatically. One disgruntled worker can put your entire business at risk if he brings a lawsuit or discrimination charge against you — whether valid or not. The cost to defend the allegations alone could put your company out of business, not to mention the price you would pay if you lose.

Here are the top 5 reasons your company should have EPLI coverage:

  1. Employee lawsuits and discrimination charges are excluded under standard general liability policies;
  2. Every employer, large or small, can be the target of legal action from past, present, and prospective employees;
  3. Owners’, directors’ and officers’ personal assets can be at risk;
  4. Employees file more than 90,000 complaints each year with the U.S. Equal Employment Opportunity Commission;
  5. Employees can easily file lawsuits, often with no risk or cost to them.

While you are responsible for deductibles and legal costs not covered by the policy,  BCN Services has made it easier and cost efficient in 2013 to mitigate your expenses of a claim by negotiating an arrangement with our carrier to allow us to provide the initial investigative work to our clients on EPLI claims with our law firm’s oversight, saving significantly on legal expenses.  To minimize claims, BCN’s trained and certified HR professionals will help guide you through employee relations and other compliance issues thereby greatly reducing your risk.

Remember to always report any incident which could give rise to a claim immediately to the BCN Human Resource Department by phone.  For further information about EPLI,  contact us at 800-891-9911 or contact us here.

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Kate Douglass, Senior HR Generalist

Employers: Keep proper I-9 records avoid fines and penalties

Government statistics show a dramatic increase in enforcement of immigration-related workplace rules since 2009, including initiating a large number of employer audits and assessing millions of dollars in fines.

The Immigration and Customs Enforcement Agency, the enforcement arm of the U.S. Department of Homeland Security, issued audit notices to 1,000 businesses nationwide between April and November 2009, initiating almost 1,900 prosecutions against employers for I-9 violations.

This is more than three times the number of prosecutions in the same period in 2008.

In fiscal year 2012, ICE hit the following benchmarks relating to I-9 enforcement:

  • There were 520 criminal arrests tied to worksite enforcement investigations, including 240 owners, managers, supervisors, or human resources professionals facing related charges such as harboring or knowingly hiring illegal aliens;
  •  There were 3,004 I-9 Notices served in companies nationwide;
  • There were 495 Final Orders for I-9 related violations, totaling $12.47 million in civil fines.

To put this activity in perspective, in fiscal year 2007 the total number of I-9 Notices of Inspection was 250. Since January 2009, ICE has audited more than 8,000 employers and imposed more than $87 million in fines.

Based on these statistics alone, the importance of proper I-9 record keeping cannot be stressed enough. Remember that federal regulations call for employers to:

  • Verify the identity and employment authorization of each person hired after Nov. 6, 1986.
  • Complete and retain an I-9 for each employee required to complete the form.

If you have any questions about I-9 forms, regulations surrounding them and the proper method for verifying employee identities, the experts at BCN Services can help.  Contact us at 800-891-9911.

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Lisandra Quinones, HR Administrator

Handling reasonable accommodation requests due to disability

How do you respond to an employee who reports a disability and requests a reasonable accommodation?

Take the case of a long-term employee who has been mostly exemplary but her attendance has recently been poor, she has been frequently tardy and her performance is declining. You meet with her on this matter and she informs you that she has a medical condition that is depriving her of sleep and causing her to be late or absent.  It leaves her so exhausted that she can’t perform her work to normal standards.

What action does an employer take?

If you are an employer with 15 or more employees you are covered by the Americans with Disabilities Act (ADA). Under the ADA, a “disability” is defined as a physical or mental impairment that substantially limits one or more of the individual’s major life activities. Under the ADA regulations, “major life activities” include performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.

In our example, how would you determine if your employee has a disability?  While the Americans With disabilities Amendment Act of 2008 (ADAAA), amended the ADA and makes it easier for an employee to be considered disabled, you are not required to take the employee’s word.   If the disability is not obvious, you may be entitled to seek medical certification from the employee’s physician to determine if the condition qualifies as a disability. (Note: you should never contact the doctor yourself.  BCN Services would conduct that review.)

Let’s assume that the employee’s doctor states that the medical condition is significant and would be considered chronic. It affects the employee’s “major life activity” of sleep. The employee has been prescribed medication and will likely be improving but it may take 3 to 4 months to adjust the level of medication to allow the employee to get back to normal. It is the doctor’s opinion that the employee may have difficulty getting to work on time, may miss a day or two of work periodically suffering from sleep deprivation and may have difficulty focusing at work at times.

You now know that the  medical condition substantially limits your employee’s ability to sleep and you are required under the ADA to explore a reasonable accommodation in an interactive process with the employee.  You may reject the employee’s proposed accommodation if doing so would impose an undue hardship on the operation of your business. You may still require the employee to be qualified to perform the essential job functions with or without accommodation.

How can you determine if an accommodation is an undue hardship?

Undue hardship means that an accommodation would be unduly costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business. Among the factors to be considered are the cost of the accommodation and the employer’s size, financial resources, and the nature and structure of its operation.

According to the Equal Employment Opportunity commission (EEOC), if providing an accommodation would be an undue hardship, the employer must try to find another way to accommodate the employee. For example, if the undue hardship is due to cost, the employer must seek funding from an outside source, such as a vocational rehabilitation agency, or consider whether the cost can be offset by state or federal tax credits or deductions.

If there is no reasonable accommodation, it is possible to terminate the employee. But to limit potential liability, you should have a thorough discussion with the employee and seek guidance from BCN Services before making that decision.

In our example, a scheduling change would be one way to accommodate the employee. The employer might offer a flexible schedule allowing the employee to start work at 10 a.m. instead of 8 a.m. If the employee is a manager that opens the business, this might not be a reasonable accommodation.

Explore other options with the employee.  She may not like an accommodation of transitioning to night manager, for example, but it could be a reasonable option for your business. Another accommodation could be to provide the employee with unpaid leave until the condition is controlled. If her work performance is significantly impacted you may find no option but to offer unpaid leave until her condition is corrected. That could be considered a reasonable accommodation.

How long would an unpaid leave be reasonable?

According to the EEOC and recent court rulings, a leave estimated by the physician to be of a specific time period and not indefinite would likely be considered reasonable.

Each case must be evaluated on its own merits and should be based on the company’s size, resources and the nature of the business.

While all disabilities are not eligible under the Family and Medical leave Act (FMLA), some are. Employers with more than 50 employees may have to offer the employee a Family Medical Leave. In our scenario,  if the business has more than 50 employees the employee could use Family Medical Leave intermittently or consecutively while her medication was being regulated. If the employee is eligible for FMLA, she would be allowed up to 12 weeks of leave. If she exhausted her 12 weeks of FMLA, the ADA rules might still provide her with accommodations.

In other circumstances the FMLA and the ADA might cover an employee at the same time. To complicate the issue further,  ADA, FMLA and workers’ compensation injuries can be intertwined in the same case but that is a blog for another day!

The EEOC has publically stated that ADA enforcement is a primary focus of its compliance efforts. If you have a situation where an employee or applicant tells you that he or she has a disability and needs an accommodation, please contact your Partnership Manager or the Human Resources department at BCN Services for assistance and guidance on this tricky area of employment law.

Follow the HR HeaRtbeat.com blog for updates on this topic and others relating to employee disabilities.  Contact BCN Services at 800-891-9911 or click here to be directed to our contact us page.

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Jeff Walsh, Partnership Manager

Employers may send an employee home for minor illness or other reason

In all 50 states in the U.S., an employer has the right to ask a sick employee to go home.

Employers are under no obligation to allow a sick employee to stay on the job and infect their co-workers. In fact, an employer can send an employee home at any time for any reason, or without reason.  However, the employer must be careful that they do not engage in illegal discrimination against an employee based on race, color, sex, pregnancy, religion, national ancestry, or violate any written contracts.

A few examples or reasons an employer may send a worker home include:

  • There is little work for him or her to do.
  • The employee seems too ill to be productive.
  • The employer fears that the employee is contagious.
  • The employer has reason to believe that the employee is not physically fit for duty. In this case the employer may require a doctor’s release for the employee to return to work.

When an employer sends an hourly employee home, the employee must be paid for any time worked. There is no federal or state law requiring that the employee be paid for time not worked. An exempt employee who works a portion of the day must be paid his or her usual salary for the entire day, regardless of whether they have, or do not have sick leave or paid-time-off benefits.

Finally, employers must be aware that different rules apply if the employee has a permanent disability under the Americans With Disabilities Act (ADA) or a serious health condition under the Family and Medical Leave Act (FMLA), rather than a minor illness.

The experts at BCN Services can offer guidance in specific employment situations.  Contact us at 734-994-4100 or toll free at 800-891-9911 or visit our website at www.www.bcnservices.com.

Lisandra Garrow, Partnership Manager

 

Collective Bargaining Thoughts for Owners

Many employers don’t know how to address the topic of unions in the workplace. The National Labor Relations Act prohibits employers from a few items. Remember the acronym of TIPS of what you cannot do:

  1. Threaten – Employers cannot threaten employees with adverse actions if they support a union. An example would be telling employees that the company would close a location or lay people off if a union were supported or elected by the employees.
  2. Interrogate – Employers can discuss unions with their employees but they may not Interrogate, or question, their employees about their union activities, whether they support the union or if they signed a union authorization card.
  3. Promise – Employers may not promise benefits (raises, for example) to employees if they don’t vote for the union or if they campaign against the union.
  4. Spy – employers may not spy or place employees under surveillance to identify union activities.

Beyond these specific limitations, employers and company managers may discuss facts, experiences and opinions about unions.

You or your management team can inform employees of the process of a union campaign, that they may be forced to pay union dues and initiation fees, that a union contract would limit or eliminate employees coordinating their hours, wages, benefits and working conditions with individual managers.  Share that the union cannot promise anything to your employees since everything would be negotiable. You can discuss your past experiences with unions, facts about union strikes and other similar issues.

That said, employers should note that most union campaigns are no longer about economics. Employees that do not have a voice in the workplace, that don’t feel respected and appreciated or feel that they are not treated are more likely to gravitate to a union. These emotional issues are the forces that drive many to join unions today. If you and your management team keep your employees engaged, seek their thoughts and input in ways to improve business and make the employee feel valued, you have a taken a huge step in preventing union activity in your workplace.

Here is a common-sense approach:

  • Be pro-employee, not anti-union!
  • Treat employees fairly.
  • Maintain open lines of communication with your employees.
  • Survey employees, formally or informally, to ask whether they are being treated respectfully and fairly.
  • Explain unpopular company decisions. Employees may not like something, but understanding your reasons for actions will earn the employees respect.
  • Maintain an open door policy and listen to employees that have complaints or concerns. Ensure that employees understand that their concerns are taken seriously.
  • Maintain competitive wages and benefits within your industry and market.
  • Beginning with the orientation of new employees, make it clear to your employees that you prefer to deal directly with your employees. A position statement regarding unions can be included in the company handbook, if desired.

Should you discover that your employees are exploring a union, the National Labor Relations Act limits your actions during a union campaign. For example, if you discover employees are signing or being asked to sign union authorization cards and you offer raises during that time, you might face an Unfair Labor Practice charge. If you need help with this topic or other employment issues, contact BCN for further discussion and guidance.

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Jeff Walsh, Partnership Manager