Please take note of the following:

Atlanta payroll Services, health care reform Q&A

Atlanta Payroll Services small business alert:

 As always, it is our pleasure to assist you!

IRS Independent Contractor Checklist   
 
Misclassification of an employee as an Independent Contractor may result in significant fines and penalties. The Internal Revenue Service (IRS) uses 20 factors to determine whether or not an employer has enough control over a worker for that individual to be classified as an employee. Designed only as a guideline, this checklist can help determine:

• Behavioral control (factors pertaining to job instructions, training, etc.)
• Financial control (factors pertaining to investment, expenses, profit/loss opportunities, etc.)
• Relationship of the parties (employee benefits, written contracts, etc.) 

To download the IRS Independent Contractor Checklist, refer to your HR Support Center Essential tab at Atlanta Payroll Services.

Helping Employees find the Greener Pasture: Your Side of the Fence

Question & Answer

The Employer Mandate

From an employer’s perspective, this is most likely the most feared aspect of Health Care Reform. In fact, the overwhelming majority of our Health Care Reform-related questions to date in 2013 have covered this topic.  So the purpose of this article is to answer some of our most commonly asked questions surrounding the Employer Mandate in very clear terms. 
   
The “Employer Mandate” is the provision in the Patient Protection and Affordable Care Act (PPACA) that requires “large” employers to provide health insurance to their full-time employees (those working 30 or more hours per week) or face a penalty.  A “large” employer is defined as one that has an average of 50 or more “full time equivalent” employees on business days during the preceding calendar year. To calculate whether your organization is covered by the employer mandate, you must look at the twelve months of the preceding calendar year to determine the average number of full-time equivalents you employed over those months.  Part time employees are considered fractions of full time employees for the purpose of the employer mandate calculation. Lastly, seasonal workers are excluded unless they work for the employer for more than 120 days. 
 
The formula for determining full time equivalent employees is:
 
Part-time Employee Equivalents (Total Monthly Part-Time Hours/120) + Full-time Employees (30 hours/week or more) – Owners (Sole proprietors, Partners in a Partnership, Members of LLCs Taxed as a Partnership,  and Shareholders who own two percent or more in an S Corporation) = Full Time Equivalent Employees. 
 
Should you determine that your organization will average less than 50 full-time equivalent employees in 2013 (using the above calculation), you are not required to offer health insurance to employees in 2014, and, if you do offer health insurance, the federal law does not require that you offer any minimum employer contribution amount. It is important to note, however, that your state law or your insurance carrier may have minimum employer contribution requirements in order to participate in group health plans, but these are unrelated to the federal Health Care Reform laws.
 
Should you determine that your organization will average at least 50 full-time equivalent employees in 2013 (using the above calculation), you will be required to offer “minimum essential health insurance coverage” at an “affordable rate” to all full time employees (those working at least 30 hours per week) in 2014.  While part time employees are included fractionally in the calculation, the federal law does not require the employer to offer health coverage to part-time employees.  So what is “minimum essential coverage?” And what is an “affordable rate?”
 
“Minimum essential coverage” refers exclusively to the health insurance plan design, not how much the employer contributes to the plan.  In order to offer minimum essential coverage under the federal law, the health insurance carrier must pay for at least 60% of treatment costs, commonly referred to as a health plan with a 60% actuarial minimum value.  In the coming months, you will probably hear this level of plan referred to as a “bronze level” plan. 
 
On the other hand, “affordable” coverage has everything to do with how much the employer contributes to the plan.  It is a common misconception that a large employer is required to contribute a specific percentage to each employee’s health insurance plan (such as 50%, 60% or 75%).  Rather, the federal law requires that the company contribute enough so that the employee’s portion of the premium for employee-only coverage of the bronze level or richer plan is no more 9.5% of the employee's total household income.  Since employers generally do not know an employee’s total household income, there is a safe harbor in place for 2014 stating that employees have access to “affordable coverage” as long as the employee’s portion of the premium for single coverage for the bronze level plan is equal to or less than 9.5% of the employee’s W-2 wages.
 

HR Alerts

DOL Final Rule on FMLA Military Amendments. Effective March 8, 2013, the Department of Labor (DOL) published a Final Rule implementing the changes to the Family and Medical Leave Act (FMLA) made by the 2010 National Defense Authorization Act (NDAA). The 2010 NDAA, amended the FMLA's military caregiver leave provision to permit eligible employees to take leave to care for certain veterans with a serious injury or illness incurred or aggravated in the line of duty, which manifested before or after the veteran left active duty. It also now allows military caregiver leave for current service members with a serious injury or illness that existed prior to service and that was aggravated by service in the line of duty on active duty. In addition, the NDAA expanded the qualifying exigency provision to permit eligible employees to take qualifying exigency leave for covered family members in the Regular Armed Forces and added a foreign deployment requirement ! for qualifying exigency leave for all military members (National Guard, Reserves and Regular Armed Forces). For additional information on this subject, contact an HR Professional.

FMLA Forms Update. Effective March 8, 2013, employers should begin to utilize the updated Family Medical Leave Act (FMLA) forms (revised February 2013) released by the Department of Labor (DOL), when applicable. The updated forms are: FMLA Form WH-381 (Notice of Eligibility and Rights & Responsibilities), FMLA Form WH-384 (Certification of Qualifying Exigency for Military Family Leave), FMLA Form WH-385 (Certification for Serious Injury or Illness of Current Servicemember for Military Family Leave) and FMLA Form WH-385-V (Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave). The forms may be downloaded directly from the HR Support Center, HR Forms Section.

FMLA Notice Poster Update. Effective March 8, 2013, there are changes to the federal Family and Medical Leave Act (FMLA) requirements. All employers covered by FMLA must display the updated FMLA notice poster, “Employee Rights and Responsibilities under the Family and Medical Leave Act” (WHD Publication 1420, revised February 2013), in a conspicuous area easily visible to all employees and applicants for employment. The poster summarizes the major provisions of the FMLA. In addition, it must be displayed at all locations an employer conducts business, regardless if there are fewer than 50 employees employed within a 75-mile radius of the worksite. If the employer chooses to utilize electronic postings to satisfy the posting requirement, this method is permissible only if the requirements of the regulations are met. The new FMLA notice poster is available in the HR Support Center in a downloadable format.

HIPAA Regulations Updates. Effective March 26, 2013, updates to the Health Insurance Portability and Accountability Act (HIPAA) regulations may impact certain employers. These regulations are based on changes under the Health Information Technology for Economic and Clinical Health (HITECH) Act, enacted as part of the American Recovery and Reinvestment Act of 2009 (ARRA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). Although comprehensive, some key updates expand HIPAA security and privacy standards to business associates, shift the default format for patients to receive requested records from paper to electronic, reduce the paperwork necessary for patients to release health information to third parties, decrease the threshold for security breach notification, increase penalties for noncompliance, and prohibit the sale of protected health information for fundraising and marketing purposes. Note: Covered entities and business associates mus! t generally comply with the applicable requirements of the final regulations by September 23, 2013.

Atlanta businesses listen up, until further notice, employers should continue using the Form I-9 currently available in the HR Support Center (even though the OMB control number expiration date of August 31, 2012 has passed). The United States Citizenship and Immigration Services (USCIS) will provide updated information about the new version of the Form I-9 as it becomes available. Employers must complete the Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States.

On November 21, 2011, President Barack Obama signed into law the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011. Section 261 of the Act, the “Returning Heroes and Wounded Warriors Work Opportunity Tax Credits” amends and expands the definition of WOTC’s Veteran target groups. The VOW Act extended the WOTC Veteran group and created two unemployed categories with increased wages and tax credits to generate employment opportunities for veterans through December 31, 2012. The U.S. Department of Labor Employment & Training Administration (ETA) and Internal Revenue Service (IRS) have been coordinating the implementation of these provisions by the states and certification applications submitted by employers.

Attention Atlanta Businesses, effective January 1, 2013, employee pre-tax contributions to Health FSAs will be limited to $2,500 per calendar year. For subsequent years, this amount will be indexed to CPI. Employers with non-calendar year health care FSAs may keep higher reimbursement limits in effect through the end of their 2012-2013 plan year.

Georgia businesses need to know, the Internal Revenue Service (IRS) optional standard mileage rate of 55.5 cents/mile for business miles expires on December 31, 2012. The Internal Revenue Service (IRS) issued the 2013 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes. Effective January 1, 2013, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be: 56.5 cents per mile for business miles drive, 24 cents per mile driven for medical or moving purposes, and 14 cents per mile driven in service of charitable organizations.

Effective January 1, 2013, an additional Medicare tax will impact employers and payroll service providers. The Patient Protection and Affordable Care Act (PPACA) increases the Medicare tax rate on wages by 0.9% (from the current rate of 1.45% to 2.35%) for higher-income individuals starting in 2013. This Medicare payroll tax increase applies to wages over $200,000 for single tax filers and $250,000 for couples filing jointly ($125,000 for a married individual filing separately). The Internal Revenue Service (IRS) plans to release revised Forms 941, 943 and the tax return schemas for the Form 94X series of returns. For additional information, contact your payroll provider, a Certified Public Accountant (CPA) or visit the HR Support Center.

Atlanta Payroll Services, HR Services learned in recent news, there has been mention of the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB). The NLRA is a federal act, otherwise known as the Wagner Act.   The NLRA was enacted in 1935 “to diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce, to create a National Labor Relations Board, and for other purposes.”  The NLRB was established to oversee and monitor the NLRA. 

Our Atlanta Georgia based clients need to understand that the key principle behind the NLRA is to provide protection to employees, regardless of union membership status, in concerted and protected activities such as organizing, and protecting employees as a “class.”  The NLRB oversees these activities for compliance with the NLRA. The function of the NLRB to prosecute violations of the NLRA has been reaching further into employers who do not have unionized employees, specifically in the area of “at-will” employment.

The NLRB has most recently challenged the “at-will” employment relationship disclaimers that many employers have in employment applications, offer letters, policy statements and employee handbooks.  The NLRB challenged that some of the statements typically contained in employment at-will policies (e.g. “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and the Company’s president or executive vice president/COO.”) may be in violation of the NLRA.

At this point, the NLRB has only taken this issue up in the state of Arizona and the final outcome has yet to be decided in the courts.  One alternative an employer may want to consider is simply changing this portion of its at-will statement to “I acknowledge that my at-will employment status can only be changed if noted in a written agreement.”  According to many legal blogs authored by attorneys, it seems that this change would meet the legal challenges that have been put forth to date by the NLRB.

Atlanta Georgia Employers seeking additional assistance regarding the company’s “at-will” employment statements may want to reach out to our Atlanta Payroll Services HR Professional for guidance.

HR Alerts

Expiration Date of Current Form I-9. On August 13, 2012, the U.S. Citizenship and Immigration Services (USCIS) released a bulletin regarding the expiration date of Form I-9. The bulletin stated: “Until further notice, employers should continue using the Form I-9 currently available […]. This form should continue to be used even after the OMB control number expiration date of August 31, 2012 has passed. USCIS will provide updated information about the new version of the Form I-9 as it becomes available. Employers must complete the Form I-9 for all newly-hired employees in order to verify their identity and authorization to work in the United States.”

Tighten Contractor Oversight of Subcontractor Compliance

1. Health and Safety. Another area of DOL attention involves safe and productive workplace environments.  The federal Occupational Safety and Health Act (OSHA) requires covered employers to maintain a workplace that is free of hazards.  Having specific policies in place is a key part of the process.
2. Social Media. With the increasing usage of social networking sites and technological equipment (i.e. smart phones), employers should remain mindful of how their employees are using the internet and thus how they may be promoting your business and the image of the company.  In addition, social media can cross barriers between confidentiality and privacy rights. So, a sound policy would be able to pinpoint the functionality and appropriate time frames that allow for social media usage during work as well as non-work hours.
3. Telecommuting.  Telecommuting can be used as an important recruitment and retention tool, and more companies are allowing more workers to work remotely more often. 
4. Benefits.  Whether trying to stay on top of various health care reform laws, apply family medical leave updates, or provide vacation and sick leave time-off, it is vital for employers to ensure that their benefits-related policies remain current.

The U.S. Department of Labor (DOL) has undergone several new compliance enforcement developments that have encompassed wage and hour regulations. One area the DOL has targeted addresses overtime issues. The federal Fair Labor Standards Act requires overtime pay to be paid to most employees at the rate of one and one-half times their regular rate of pay when employees work more than 40 hours in a week.

Unfortunately, many employers violate the overtime pay laws often by:

Inconsistently calculating the rate at which overtime should be paid,

Failing to count “off-the-clock” work activities as work time, and

Incorrectly claiming that certain employees are exempt from overtime laws.

Calculate overtime correctly. While this sounds elementary, many employers continue to be confused even with the basic formula. Overtime is paid based upon an employee’s regular hourly rate of pay. The regular rate of pay is calculated by adding up all the pay and dividing it by the total number of hours worked. In turn, the following illustrates an example step by step:

Employee X works in his / her regular job at $10 per hour for 40 hours and then works in another department at $8.00 per hour for an additional 10 hours for the week.

1. Multiply the appropriate hourly rate by the hours worked.
   
   $10 per hour X 40 regular hours = $400
   $8 per hour X 10 overtime hours = $80
   
   
2. Sum up each subtotal of pay to determine the total base pay.
   
   $400 + $80 = $480
   
   
3. Sum up each subtotal of hours to determine the total hours worked.
   
   40 regular hours + 10 overtime hours = 50 hours
   
   
4. Divide the total base pay by the total hours worked to determine the regular rate.
   
   $480 / 50 hours = $9.60 per hour
   
   
5. Multiply the regular rate by 1.5 to determine the overtime pay rate.
   
   $9.60 per hour x 1.5 = $14.40 overtime pay per hour
   
   
6. Multiply the overtime pay rate by the overtime hours to determine the overtime pay.
   
   $14.40 overtime pay per hour x 10 overtime hours = $144 overtime pay (which is added to the $400 to calculate the pay for the week at $544)

Tracking Hours Worked

Does a Facebook "Like" constitute speech for the purposes of the 1st Amendment? In April, a federal judge in Virginia concluded that it did not in Bland v. Roberts (E.D. Va. Apr. 24, 2012). Many legal spectators, including me, disagreed with the holding and speculated that the decision would be appealed.

It's nice to be right once in a while.

The case has been appealed to the Fourth Circuit and, on Monday, Facebook filed an amicus brief in support of having the decision reversed. The brief is not quite as exciting as I'd hoped and contains only minimal legal analysis. Most of the brief is devoted to providing factual background about Facebook, how it's used, and the idea of "Liking" a page or post.

To the credit of Facebook's counsel, though, I suppose there's not much legal analysis to provide. The analysis, actually, is quite simple. Contrary to the District Court's finding, Liking online content is speech--it is a statement by the User. In Bland, the plaintiff-appellant Liked a candidate in the Sheriff's race (who happened to be running against the plaintiff's boss). Liking the campaign Page was the digital equivalent of putting a sign in your front lawn that reads, "Support X for Sheriff."

Moreover, because the Like was an endorsement of a candidate running for elected office, it seems difficult to imagine how it would not be considered political speech, which receives the highest level of First Amendment protections.

The District Court avoided this conclusion by holding that the Like did not "involve[] actual statements." But "statements" are not the only type of "speech" to receive constitutional protection. It has been long settled that "symbolic" speech receives First Amendment protection. The example that comes to mind is the burning of the American flag, which the U.S. Supreme Court held to constitute symbolic speech protected by the First Amendment in Texas v. Johnson.

“Management is efficiency in climbing the ladder of success; leadership determines whether the ladder is leaning against the right wall.” -Stephen R. Covey

Are you Prepared for an Emergency?

Emergencies and disasters can take various forms including violence at the workplace as demonstrated on July 20, 2012. In one of the deadliest mass shootings in recent U.S. history, a gunman entered a Denver-area theater during a crowded midnight movie screening and killed or injured numerous people. Our condolences go to all the victims as well as the families, friends and employers of the victims. Without warning, a disaster can strike and it is your responsibility to have a plan in place to protect your employees. Use the Workplace Evacuation Preparedness Checklist (available in the HR Support Center) to be proactive versus reactive in the case of an emergency.

Contact Atlanta Payroll Services at 404 920-8668

HR Alerts

Medical Loss Ratio (MLR) Rebates. No later than August 1, 2012, insurance companies that do not satisfy Medical Loss Ratio (MLR) standards must provide their policyholders a rebate for the difference. The Patient Protection and Affordable Care Act (PPACA) requires health insurance companies to spend 80% - 85% of premium dollars on health insurance claims and clinical activities for improved healthcare quality.

OSHA Final Rule on Whistleblower Provisions. On July 10, 2012, the Occupational Safety and Health Association (OSHA) issued a final rule implementing the whistleblower provisions of the Consumer Products Safety Improvement Act (CPSIA). The provisions provide employees with protections against retaliation by employer manufacturers, private labelers, distributors, or retailers when an employee engages in one or more protected activity.

OSHA Heat Safety App. The Occupational and Safety Health Administration (OSHA) agency launched a new heat safety tool. The heat safety tool is a smartphone app which allows supervisors and workers to calculate the heat index for their worksite, displays risk levels to outdoor workers, and provides information on protective measures to reduce employee exposure to heat-related illness.

The Patient Protection and Affordable Care Act (PPACA) contains comprehensive health insurance reforms that require compliance by employer-sponsored group health plans. Many of these reforms apply to plan years beginning on or after September 23, 2010. The following general checklist is designed to help employers review their plan's compliance with the major health care reform requirements.

• Assessment of the Act's effect on the business
• Determination of redistribution or usage of Medical Loss Ratio (MLR) rebates
• Distribution of Summaries of Benefits and Coverage (SBC) in time for the next open enrollment
• Reporting of group health plan coverage costs on 2012 Forms W-2
• Revisions to company cafeteria plans to reflect employee contribution limits on health care Flexible Spending Accounts (FSA)
  

"You’re fired!" If you have ever said that to an employee (unless you are Donald Trump and filming the reality show “The Apprentice”), you should be prepared to pay for your now former employee’s unemployment claim. If an employee walks out and therefore terminates employment voluntarily, you may still be required to pay for unemployment. Confusing? You bet.

An individual may become disqualified for unemployment benefits if he or she:

• Was fired for misconduct or a clear violation of company policy
• Quit without good cause (e.g. walking off the job because of a disagreement with a colleague)
• Returned back to the same job to work
• Turned down a suitable job offer during the unemployment period
• Participated in a strike or work stoppage caused by a labor dispute
• Received Social Security benefits, severance pay, workers’ compensation payments, state disability benefits, or a private pension
• Made false claims or omitted information on his or her unemployment claim
  

Conducting HR Audits to Protect and Propel Your Business

According to the HR Support Center’s April 2011 Poll of the Month, 57% of the respondents indicated they have not conducted any audits of their company’s HR function. Understanding what audits are, the purpose they serve, and the significance they provide can position a business to be compliant with various employment laws and sought after as an employer of choice. Remember; conducting an audit is not a one-time-it’s-all-done-and-over-with deal. Instead, effective audits are to be conducted, at minimum, regularly once a year.

Generally, there are four types of HR audits:

• Compliance: Evaluation of the company’s compliance with state and federal workplace laws as well as industry regulations.
• Function-Specific: Comprehensive assessment into specific areas of the HR function, such as Benefits, Compensation, and Safety.
• Best Practices: Comparative review of internal business practices with those of other businesses considered to be leaders in the industry or in the HR field.
• Strategic: Examination of the strengths and weaknesses of the company’s systems and processes to gain greater market competitiveness.

Examples of necessary reasons to conduct an HR audit include:

• State and federal employment laws and industry regulations,
• Company size in terms of number of employees,
• Business development into new areas including expansion into multiple states,
• Internal restructuring of the organization,
• Mergers and acquisitions, and
• Business cycles / seasons.

Moreover, federal and state agencies have been recently targeting certain industries (i.e. agriculture, hospitality, and manufacturing) to primarily audit for worker misclassification, wage and hour, and record keeping matters. Employee claims of unfair discrimination or practices in the workplace also can trigger a federal or state agency audit knocking on your door. So, be constantly prepared.

As discussed in the September 2010 newsletter edition, the U.S. Department of Labor’s Plan / Prevent / Protect strategic compliance enforcement initiative has already been in motion. Clearly, it is in the employers’ best interest to be “proactive” rather than “reactive” when it comes to proving their on-going workplace compliance efforts. Conducting regular HR audits remains a key ingredient in the process. One of the easiest ways is for your company to take the 3-minute HR Audit now available in the HR Support Center!

Conducting HR Audits to Protect and Propel Your Business

According to the HR Support Center’s April 2011 Poll of the Month, 57% of the respondents indicated they have not conducted any audits of their company’s HR function. Understanding what audits are, the purpose they serve, and the significance they provide can position a business to be compliant with various employment laws and sought after as an employer of choice. Remember; conducting an audit is not a one-time-it’s-all-done-and-over-with deal. Instead, effective audits are to be conducted, at minimum, regularly once a year.

Generally, there are four types of HR audits:

• Compliance: Evaluation of the company’s compliance with state and federal workplace laws as well as industry regulations.
• Function-Specific: Comprehensive assessment into specific areas of the HR function, such as Benefits, Compensation, and Safety.
• Best Practices: Comparative review of internal business practices with those of other businesses considered to be leaders in the industry or in the HR field.
• Strategic: Examination of the strengths and weaknesses of the company’s systems and processes to gain greater market competitiveness.

Examples of necessary reasons to conduct an HR audit include:

• State and federal employment laws and industry regulations,
• Company size in terms of number of employees,
• Business development into new areas including expansion into multiple states,
• Internal restructuring of the organization,
• Mergers and acquisitions, and
• Business cycles / seasons.

Moreover, federal and state agencies have been recently targeting certain industries (i.e. agriculture, hospitality, and manufacturing) to primarily audit for worker misclassification, wage and hour, and record keeping matters. Employee claims of unfair discrimination or practices in the workplace also can trigger a federal or state agency audit knocking on your door. So, be constantly prepared.

As discussed in the September 2010 newsletter edition, the U.S. Department of Labor’s Plan / Prevent / Protect strategic compliance enforcement initiative has already been in motion. Clearly, it is in the employers’ best interest to be “proactive” rather than “reactive” when it comes to proving their on-going workplace compliance efforts. Conducting regular HR audits remains a key ingredient in the process. One of the easiest ways is for your company to take the 3-minute HR Audit now available in the HR Support Center!

E-Recruiting with Social Media – The New Way of Getting New Hires

Social media is an online version of media that enables real-time, dynamic dialogue among readers and viewers to participate in content development, as opposed to traditional media which delivers static content. Social media networks have started out popularly for personal interests. In recent years, numerous business applications and approaches have emerged to market and promote products and services, as well as companies themselves for employer branding and recruitment purposes. Through social media, employers can gain a wealth of information about specific job candidates.

However, before fully engaging in “social recruiting,” be clear about your company’s strategy. If the strategy is non-existent or weak, little accountability for results exists. Best strategic practices include:

• Finding passive candidates. Social media can help you identify and develop relationships with top performers who are not active job-seekers yet.
• Focusing on talent groups. Participate in groups which share information and engage in dialogue based on common industry interests and certain skilled professions or talents.
• Facilitating education connections. Students – whether in a college or a vocational program – are highly tied to and accessible through technology such as social media.

Fully familiarize yourself with social media to help keep prospective candidates engaged throughout the recruiting process. When you finally have the real need to hire, you will already have your top candidates right at hand.

Handling the Expanding Issue of Obesity Discrimination

Published last October in the Journal of Occupational and Environmental Medicine, a Duke University study estimated the cost of obesity among U.S. full-time employees to be $73.1 billion. According to the study, the cost of obesity accounted for (1) employee medical expenses, (2) job productivity loss (due to health problems), and (3) work absenteeism. Facing such mounting and costly challenges, an employer can hastily make adverse employment decisions against overweight or obese employees and thus jeopardize the business with risks of unfair discrimination claims. So, what responsibility must you as the employer exercise in order to provide a workplace free of weight-based discrimination and harassment?

Covering employers with 15 or more employees, the federal Americans with Disabilities Act (ADA) prevents discrimination based on a disability and requires employers to provide reasonable accommodations to a qualified employee with a disability. In general, obesity is not covered under the ADA, but morbid obesity is. Although no clear rule exists on whether obesity is a disability even under the recently amended (and more employee-friendly) ADA, employees have successfully made “regarded as” ADA claims. For example, if an employer refuses to consider a job applicant due to a perceived obesity of the individual, then the failure to hire may be deemed as an act of unlawful discrimination. Obesity-related conditions (i.e. diabetes and heart disease) may also be protected by the ADA. Moreover, be aware of state-specific laws which may provide additional or more stringent.

Whenever faced with hiring or managing overweight employees, some employer guidelines include:

• Establishing employee handbook policies emphasizing equal employment opportunities regardless of personal appearances.
• Reviewing job descriptions for any questionable weight requirements not related to the essential job functions.
• Avoiding assumptions about which job tasks an overweight employee cannot perform.
• Working with employees on mutually agreed-upon reasonable accommodations in order for the individual to perform the essential functions of the job.
• Educating managers on, at minimum, the basics of the ADA and related federal and state discrimination laws.
• Training periodically all employees and managers on how to address inappropriate or unprofessional behavior which may lead to weight -based discrimination.

In addition, to help counter the rising costs associated with obesity in the workplace, take a closer look at how you promote a healthy work environment. Your company could stock vending machines with healthy snacks instead of soda and candies, implement a voluntary weight reduction program, or partner with a local fitness center to offer special employee discounts. Maintain a healthier workplace culture over time, and your company could find the costs of employee obesity a diminishing issue that positively affects the bottom line.

5 Top Tips for Benefits Plan Communications

The Employee Retirement Income Security Act (ERISA) is a federal law establishing minimum standards for employee health benefit and retirement plans. While an employer is not required to establish a plan, ERISA does require those who establish and administer plans to meet certain standards. For example, plan administrators must provide participants written disclosures, such as a summary plan description (SPD) in a clear and easy to understand format about the company’s employee benefit plans. 

Recently, a U.S. Supreme Court case of CIGNA Corp. v. Amara, addressed a situation to which all employers should pay attention.  CIGNA had sent their employees SPDs describing a benefit greater than what the terms of the formal plan had provided.  The employer was sued for the more generous benefit which the SPD had described, and a lower court had ruled in favor of the plaintiff.  However, the U.S. Supreme Court unanimously reversed the ruling and held that inaccurate or misleading SPD statements were not subject to ERISA enforcement penalties or remedies. 

The Court ruling reminds employers to constantly consider the following five tips:

• Summary Plan Descriptions. Draft and distribute SPDs that are brief and easy to read without overt contractual terms or legalese.
• Communications Officer.  Determine the company representative who will have authority over plan administration and communications.
• Regular Reviews. Routinely verify that plan documents are current and that communications are consistent and accurate with the summaries and are compliant with ERISA requirements.
• Transparency in Changes. Employee communications should fully disclose in advance any changes, especially those that may result in adverse circumstances (i.e. a decrease in benefits).
• Non-SPDs.  While an SPD may include both a complete description of the plan's terms (i.e. a Certificate of Coverage) and required ERISA disclosure language, an insurance provider's Master Contract or Certificate of Coverage itself is not considered an SPD. 

Employers can gain some reassurance that the benefits as detailed in the plan would be limited to the contractual terms as written.  At the same time, employers must ensure and regularly audit for proper and accurate communication of employee benefits.  ERISA aspects including SPDs and plan documents can be very complex and confusing for employers – big and small.  If you have any responsibility over your company’s employee benefits program, then consider seeking assistance from an HR professional or benefits consultant for added expertise and guidance.

Invest with Tuition Reimbursement

Employers can provide tuition reimbursement as a strategic employee benefit incentive to help attract and develop employees to excel and grow with the business. Tuition reimbursement typically helps employees with fees and expenses regarding course registration, materials, training, etc. Many perks exist when employers offer tuition reimbursement:

• Low turnover rates and stable retention rates enable savings in recruitment and hiring costs.
• Employee loyalty, appreciation, and professional image increases.
• New skills and knowledge acquired contribute to increased productivity.

With the time, effort, and money directed towards providing a tuition reimbursement program, employers will also want to ensure that employees who benefit from the program stay and not leave and take their newfound skills and talent to work for a competitor. To offset this concern, many employers require employees to make certain commitments to the company in exchange for having their tuition and related expenses paid. Examples include requiring the employee to:

• Work for a minimum time frame after the completion of the program before expenses are reimbursed.
• Maintain a specific grade point average (GPA) to qualify for reimbursement.
• Repay any funds already paid if the employee terminates employment before completion of a course.

Also, when planning to establish a new or revise a current tuition reimbursement program, keep the following suggestions in mind:

• Know your budget to effectively manage costs and expenses.
• Provide clear program guidelines on the conditions for approved tuition reimbursements.
• Review the company’s employee handbook to ensure that relevant policies (especially those regarding advancement opportunities) are updated in alignment.
• Engage in on-going discussions with employees concerning their individual interests and growth opportunities within the company – all of which can be memorialized with an individual development action plan.

Supporting employees in their educational growth and allowing them to apply their learning on the job in ways that translate into increased productivity and profit can speak volumes of how a company can experience a high return on its investment in employee education.

New NLRB Notice Requirement Puts Businesses Nationwide on Notice

The National Labor Relations Board (NLRB) issued a final rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act (NLRA). The NLRB will enforce   employers to post a new NLRA notice in the workplace. The posting requirement is effective November 14, 2011.  

Covered Employers 

The posting requirement applies to all private-sector employers (including labor unions) subject to the National Labor Relations Act. Because NLRA rights apply to union and non-union workplaces, all employers subjected to the Board’s jurisdiction (aside from the US Postal Service) will be required to post the notice. In general, the NLRA covers private employers that have an impact on interstate commerce which is based much on the dollar volume of business a company generates. For example, the law covers retail or service establishments with annual gross receipts of at least $500,000, manufacturing companies that ship at least $50,000 worth of goods across state lines or purchases at least $50,000 worth of goods from out of state.  

Employers Not Covered 

• Government or Union Employers. Certain employers are specifically excluded by the NLRA: federal and state offices, Federal Reserve Banks, employers subject to the Railway Labor Act, labor unions and their officers and agents (except when they are acting as employers).
• Companies that have a municipal function. A privately-owned company with an essentially municipal function is exempted from the NLRA.
• Religious schools. An exception here is schools that are largely secular and not pervaded by a religious purpose.
• Agricultural, railroad and airline employers are not impacted.   

In a conspicuous area where employees can easily see and read it, the NLRA notice must be posted in English. If 20 percent or more of the staff is not proficient in English and speaks a language other than English, then the employer must post the notice in that other language. However, if two or more groups comprising at least 20 percent of the staff speak different languages, then the employer must either physically post the notice in each of those languages or post the notice in the language spoken by the largest group of employees and provide a copy in the other language(s) to each of the other employees. If an employer customarily communicates workplace policies to employees in an electronic format (i.e. a company intranet), then it must electronically post the notice as well. Failure to post the notice may constitute an unfair labor practice under the NLRA. 

This new poster requirement will clearly bring more attention and increase interest in union organizing. As importantly, employers should anticipate an increase in complaints from non-union employees about work rules, especially those that run contrary to any of the poster information. In preparation, employers should become familiar with the NLRA language, review their company workplace policies and procedures to make sure that they do not conflict with the NLRA provisions, and be ready to discuss the NLRA rights with their employees.

Settling Down or Not with the IRS Voluntary Classification Settlement Program

In pursuit of employers who misclassify their workers, the U.S. Department of Labor (DOL) has been aggressively ramping up the number of investigations and its employment law enforcement efforts.  In alignment, the Internal Revenue Service (IRS) announced last September its Voluntary Classification Settlement Program (VCSP), which may offer relief for employers from unpaid employment taxes, penalties, and interest resulting from worker misclassifications.  To determine whether or not joining the VCSP would be a smart move, an employer needs to consider some key factors. 

Under the VCSP, an employer may voluntarily reclassify their workers as employees for future tax periods for employment tax purposes. To participate in the program, the employer must meet specific eligibility requirements, apply for the VCSP, and enter an agreement with the IRS. An employer may be considered eligible for the program if it: 

• Is not subject to a worker misclassification audit currently engaged by a federal or state agency,
• Has consistently treated the workers in question not as employees (i.e. as independent contractors), and
• Has filed for the past three years the required Form 1099s regarding the workers.

• A three-year extension of the statute of limitations for collection of employer back taxes during the first three years upon participating in the program;
• A limit of 10 percent of the employer’s employment tax liability that may have been owed on compensation paid to the workers for the most recent tax year, without interest and penalties;
• No audit for employment tax purposes for prior years with respect to the classification of the workers in question; and
• Treatment the identified workers as employees moving forward.

• First of all, the IRS is not obligated to accept an employer’s application (IRS Form 8952) to the program. So, if an application is rejected, the employer may have in essence admitted to worker misclassification fault, thus creating a potential case for wage and hour lawsuit claims.
• The IRS relief does not apply to other federal or state agencies (i.e. the DOL) which have similar responsibilities for worker classification compliance enforcement.  As established through recent “memorandums of understanding” with participating agencies, IRS information-sharing would likely increase exposure of an employer’s liabilities related to worker misclassifications.
• The employer must account for and remedy any previously avoided employee expenses (i.e. due to failure of complying with minimum wage and overtime laws, of providing company-sponsored employee benefits, of offering workers’ compensation and unemployment insurance, etc.).

Summer Dress Codes: Too Hot for Compliance?

According to the May 2012 HR Support Center poll inquiring about spring and summer dress code policies, most businesses do not alter their dress code policies during these months. Out of all the respondents, 63% indicated no change during the spring and summer months from the company's standard dress code, while 9% indicated that employees are not required to wear professional clothing during these months. There are several implications to be aware of in regards to workplace dress code policies in the summer.

• Health concerns (physical and mental stress). During the hot summer months, it is important to consider the health of employees who will be performing work outside or in a facility without air conditioning. The company may need to alter its dress code in order to reduce the physical stress of employees working outdoors, as physical stress can lead to reduced cognitive ability and heat-related injuries and illnesses. In addition, some employees may be protected under the American with Disabilities Act (ADA) which may require reasonable accommodations.
• Productivity levels (includes motivation). The productivity levels within the business may be reduced if employees are dressed in a manner that is distracting to themselves or others. Therefore, it is important to ensure that dress codes allow for maximum productivity. For example, if an employee is wearing a baseball cap during an office meeting, others may find that to be a distraction.
• Safety concerns (injury and accident prevention). There are several safety concerns to consider if dress codes are not properly enforced. Even in extreme temperatures, it is critical that employees wear all recommended and required safety equipment. For example, those in a construction field should not wear sandals; those in the medical field should avoid exposing unprotected skin and wearing loose accessories (such as jewelry) around hazardous chemicals, equipment/machinery (such as wheelchairs), and other things (i.e. syringes).
• Image/Professionalism. Even in the summer months, it is important that the company portray a professional business image. For example, allowing pilots to wear swim trunks could certainty result in decreases in customer confidence levels.

It is encouraged to write comprehensive policies that cover the business dress code. The management team must consider productivity, safety, and regulatory compliance when writing the dress code policy. It is vital to consider whether the dress code could create a charge of discrimination. A workplace dress code for summer months should not discriminate against members of a protected class under civil rights laws such as gender discrimination, religious discrimination and race discrimination. It is important to stay consistent for all exceptions to the policy and to apply consequences for all violators of the policy. Considering these factors will ensure the company's dress code maximizes summer productivity and minimizes the potential for legal exposure.

Workplace Violence Sources and Solutions

Although some organizations have stronger security measures in place than others, including employee identification badges, locked entrances, metal detectors, etc., sometimes these may not be enough to provide a safe workplace. Employers can help to minimize workplace violence by:

• Establishing a zero-tolerance workplace violence policy that encompasses all individuals who come in contact with the business, including customers, visitors, employees, etc. This policy should encompass provisions for threats, harassment, intimidation, weapon authorization (if applicable), and relevant disciplinary action.
• Creating a written and enforced Workplace Violence Prevention Program covering the administrative costs, analysis, evaluation, complaints, investigations, and proactive workplace violence prevention strategies.
• Reducing stress by using Employee Assistance Programs (EAPs), managing performance with ongoing evaluations, providing fair and consistent policies pertaining to terminations, and acknowledging employees’ contributions to the organization.
• Reviewing hiring practices to ensure background checks are conducted when needed and avoiding negligent hiring practices.
• Monitoring workplace safety protocols to ensure compliance with the organization’s termination procedures (i.e. return of company property, witnesses for termination meetings, etc.), and evaluating threats concerning policies or regulations about concealed weapons.
• Creating and communicating a safety plan to be utilized if the organization has a workplace violence incident.

Interview Bias Impacting Hiring Decisions

• Stereotyping. Stereotyping involves making generalized opinions about how people from a protected class such as sex, religion, age, race, etc. appear, think, act, feel or respond. For example, assuming a male would prefer being employed in a construction job over a teaching job.
• Inconsistency. Some managers utilize different sets of questions to interview for the same job position amongst different individuals. For example, asking Hispanic candidates about their bilingual skills versus Caucasian applicants is not a recommended practice.
• First Impression. First impressions can leave a lasting impression. Sometimes during the interview process, the interviewer takes the first thing he or she notices about the candidate and forms his/her opinion regarding the applicant on the first impression. This bias may benefit or harm the candidate’s chances of selection.
• Halo/Horn Effect. If the interviewer finds one good trait, he or she will favor the candidate (halo). When the interviewer finds one negative trait, he or she will see that to be a disqualifier for the position (horn).
• Contrast Effect. Contrast bias is present when candidates are compared against each other rather than evaluated based on the job requirements. The tendency is to base a candidate’s individual ranking on one's position relative to others in the group. If the interview pool consists of a number of outstanding candidates, an average candidate will not be selected. But in a substandard pool, the average candidate may appear to be highly qualified.
• “Similar to Me”. The “similar to me” effect occurs when the interviewer identifies with the candidate on a personal level, rather than evaluates the candidate on job-related criteria. For Example: The candidate attended the same university as the interviewer.
• Cultural Noise. This occurs when the candidate’s responses are not factually based, but are socially acceptable answers. Basically, the applicant tells the interviewer what he/she thinks the interviewer would like to hear or will help secure the job.

Proactive Prevention Against Workplace Harassment

For years, the U.S. Equal Employment Opportunity Commission (EEOC) and the US Supreme Court have strongly encouraged employers to establish harassment prevention training and have punished certain employers who fail to educate their employees. Several states (e.g. California, Connecticut, and Maine) require harassment education and make it unlawful for failure to train. All companies – big and small – must understand the definition of harassment, recognize the applicable mandatory training provisions, and ensure effective delivery of programs to protect their businesses.

A few employers generally understand the basics of what is considered workplace harassment, but many often neglect or tend to forget that discrimination plays a significant role. According to the EEOC, unlawful harassment is a form of discrimination that can violate one or more federal statutes, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA). Workplace harassment and discrimination can relate to each other because both may involve unwelcome verbal or physical conduct and behaviors often associated with protected classes including race, color, religion, sex, sexual orientation, national origin, ethnicity, age, and disability. Harassment may result from internal sources (e.g. employees and managers) or external sources (e.g. customers, vendors, and visitors to the workplace).

Examples of workplace harassment include:

•Use of derogatory or mockery words encompassing skin color, religion, gender, age, and stereotypes.

•Body language (e.g. profane gestures) and materials (e.g. explicit photos) considered offensive.

•Insulting inferences or sexual references about an individual’s appearance (e.g. body parts or clothing attire).

An employer can be held liable for harassment by a supervisor that results in negative employment actions such as termination, failure to promote or hire, and loss of wages. In 2011, the EEOC stated 16.3% of charges were filed by males regarding sexual harassment. Employers having any knowledge about harassment (even alleged) and failing to take prompt and appropriate corrective action, can be held liable for harassment by non-supervisory employees or non-employees of whom it has oversight responsibilities (e.g. independent contractors or customers on the premises). If a complaint is filed with the EEOC, a determination as to whether the harassment is severe or pervasive enough to be deemed illegal is made on a case-by-case basis.

Prevention is the best tool to decrease or eliminate harassment in the workplace. Take proactive (and documented) steps to prevent and correct prohibited harassment prior to it becoming pervasive or unlawful. Clearly communicate to employees that unwelcome harassing conduct will not be tolerated. In particular, provide anti-harassment training to all managers and employees on a regular basis. Determine if the state you do business in, requires sexual harassment training. Three states (California, Connecticut, and Maine) currently require sexual harassment training to be provided for supervisory employees according to company size and other factors.

Proactive Prevention Against Workplace Harassment

For years, the U.S. Equal Employment Opportunity Commission (EEOC) and the US Supreme Court have strongly encouraged employers to establish harassment prevention training and have punished certain employers who fail to educate their employees. Several states (e.g. California, Connecticut, and Maine) require harassment education and make it unlawful for failure to train. All companies – big and small – must understand the definition of harassment, recognize the applicable mandatory training provisions, and ensure effective delivery of programs to protect their businesses.

A few employers generally understand the basics of what is considered workplace harassment, but many often neglect or tend to forget that discrimination plays a significant role. According to the EEOC, unlawful harassment is a form of discrimination that can violate one or more federal statutes, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA). Workplace harassment and discrimination can relate to each other because both may involve unwelcome verbal or physical conduct and behaviors often associated with protected classes including race, color, religion, sex, sexual orientation, national origin, ethnicity, age, and disability. Harassment may result from internal sources (e.g. employees and managers) or external sources (e.g. customers, vendors, and visitors to the workplace).

Examples of workplace harassment include:

•Use of derogatory or mockery words encompassing skin color, religion, gender, age, and stereotypes.

•Body language (e.g. profane gestures) and materials (e.g. explicit photos) considered offensive.

•Insulting inferences or sexual references about an individual’s appearance (e.g. body parts or clothing attire).

An employer can be held liable for harassment by a supervisor that results in negative employment actions such as termination, failure to promote or hire, and loss of wages. In 2011, the EEOC stated 16.3% of charges were filed by males regarding sexual harassment. Employers having any knowledge about harassment (even alleged) and failing to take prompt and appropriate corrective action, can be held liable for harassment by non-supervisory employees or non-employees of whom it has oversight responsibilities (e.g. independent contractors or customers on the premises). If a complaint is filed with the EEOC, a determination as to whether the harassment is severe or pervasive enough to be deemed illegal is made on a case-by-case basis.

Prevention is the best tool to decrease or eliminate harassment in the workplace. Take proactive (and documented) steps to prevent and correct prohibited harassment prior to it becoming pervasive or unlawful. Clearly communicate to employees that unwelcome harassing conduct will not be tolerated. In particular, provide anti-harassment training to all managers and employees on a regular basis. Determine if the state you do business in, requires sexual harassment training. Three states (California, Connecticut, and Maine) currently require sexual harassment training to be provided for supervisory employees according to company size and other factors.

According to the HR Support Center March 2012 poll, 78% of respondents indicated “No” to the question posed of: “Does your company currently have a policy or practice that permits or prohibits political related activities in the workplace?” Due to recent “occupy” movements, legislative banter and election promotions, political activities can be effectively addressed with the implementation of well-prepared policies.

First of all, employers can limit political activity in the workplace. The First Amendment does not entitle individuals (employees included) to express their political views whenever and wherever they wish. Those in private-sector companies have no constitutional right to free speech, and can be terminated for expressing political beliefs as long as their dismissal does not violate some other federal or state law.  

Political expressions encompass various (verbal or non-verbal) activities or inferences exchanged to support an idea, person, or thing. Often, there are pros and cons that come with political expressions presented in the workplace that can be treated as permitted or prohibited activities, which may or may not disrupt the workflow as well. Also, federal and state regulations further provide guidance for employers to consider when developing a policy.

The National Labor Relations Act (NLRA) describes federal regulations when an activity may be considered “protected” under law. Three rules apply to determine whether an activity (e.g. political) is protected under the NLRA: 

• Political activity occurs during non-working time and off the employer’s premises.
• On-duty political support related to a specifically identified employment concern (e.g. Health Care Reform) is subject to restrictions imposed by lawful work rules.
• Leaving or stopping work to engage in political support may be subject to restrictions imposed by lawful work rules. An employer cannot discipline or discharge employees who leave work without permission if their walkout is for the purpose of obtaining some improvement in their own working conditions from their employer who has control.  

The above-noted activities can be viewed to be political in nature and permitted for employees to engage in since the NLRA states employees have the right to engage in concerted activity. However, union-related logos represented on campaign materials sometimes may or may not be prohibited in regards to business practices (such as safety and personal protective equipment). 

In addition, state laws also make it illegal to discriminate on the basis of an employee’s political activity or affiliation. Employers have the right and responsibility to ensure that work environments are safe, and free of hostility aimed at employees because of protected classification such as race or gender. For example, in 2012 several political issues covered in the current media such as gay marriage and immigration reform, impact protected worker classes of race, religion and sex. Thus, it is vital to develop political expression policies to help manage the workplace.  

Employer policies and best practices should: 

• Prohibit political statements while working and interacting with customers, visitors, etc.
• Enforce dress codes on employees regarding pro-candidate items attire (e.g. buttons, pins, ribbons, clothing), that affect business.
• Restrict access to social media and internet programs (email).
• Prohibit political fundraising or informational meetings within the workplace, as part of "no solicitation/no distribution" rules.
• Discipline employees for leaving work to attend a rally or other political event (as opposed to allowing for voting time leave).
• Train supervisors and managers on the company’s policy and what steps to take if they hear or observe inappropriate workplace political debates that become intense.  

Although there are some companies that by the very nature of their businesses are politically involved in campaigns and voter registration drives, many employers prefer to keep politics away from business relations and practices. Many courts uphold restrictions but only on conduct that is unlawful or demonstrably harmful to the employer’s legitimate business interests. Especially during an election year, it is in every employer’s interest to develop and enforce a political expression policy to ensure workplace productivity to be its finest and anti-discrimination to be at its highest.

In today’s competitive job market, employers look to hire well-qualified, diverse, talented, skilled, experienced, and educated candidates for job positions.  Often, job postings and requirements specify minimum qualifications for prospective candidates to satisfy in order to be considered. Many employers are aware of the risk of discrimination claims affecting those from protected classes, and education background is one hiring criterion that is easily taken for granted.  

Specifically, the Equal Employment Opportunity Commission (EEOC) addressed the issue of whether or not requiring a high school diploma is viewed as discriminatory. In a November 2011 discussion letter, the EEOC stated that requiring a high school diploma may violate the Americans with Disabilities Act (ADA) regulations if it is determined an individual cannot obtain a diploma due to a learning disability. However, if the individual applied for a reasonable accommodation, then the employer would need to consider that prospective job candidate, as long as he or she met the other minimum qualifications specified by the employer. A reasonable accommodation would allow the individual to perform the essential functions of the job. 

The employer could also consider relevant work history and/or allow the applicant to demonstrate an ability to do the job's essential functions during the application process. On the other hand, if there was a job-related need and business-need to have high school diploma (e.g. as pre-requisite), then the employer may require this from applicants.

In addition, if the employer is choosing from amongst multiple applicants, it may still choose the most qualified applicant and not be required to select the applicant with a disability. The employer should consider if a different applicant had applied without a learning disability (who did not have a high school diploma) versus someone who applied with a learning disability (who did not have a high school diploma). To provide further clarification, while the ADA protects job applicants whose disability made it impossible to obtain a diploma, it would not protect a job applicant who consciously chose not to finish this level of schooling. 

New Federal Law Alert

"On Thursday, June 28, 2012, the U.S. Supreme Court issued a ruling that upheld (except for sanctions related to Medicaid expansion) the constitutionality of the Patient Protection and Affordable Care Act (PPACA), also known as the Health Care Reform Act.

HR Training for Managers as a Key Compliance Strategy for Your Business

The value of providing training to managers throughout the employment life cycle cannot be overlooked. Training ensures that your managers are knowledgeable about your company’s workplace law obligations and skilled in delivering human resources best practices in order to become successful in their roles. Training further enables business costs to be low, employer liability to be controlled, and allows for successful organizations to emerge. Did you know that in 2010 the Equal Employment Opportunity Commission (EEOC) filed 99,992 charges against the private sector?  

Managers should be trained in various discipline areas, but some may or may not apply depending upon the company’s size and industry. Below are some suggested strategic and compliance training topics to assist managers in increasing effectiveness and reducing exposure.   

• Business Execution. Monitoring business goals, supervising employees, and managing organizational changes may result in improved business effectiveness.
• Leadership. Providing ample opportunities for employees to have open communication and share a common vision, mission and goal helps with decreasing employee turnover rates.
• Performance Management. Learning to provide evaluations that are fair, objective, and based on the organization’s goals opens the door to feedback and conveys to employees they are valuable assets to the organization.
• Diversity. Getting to know who your employees are, how to execute equal employment opportunities with non-discrimination tactics, and handling generational differences allows for increased employee satisfaction retention rates.
• Business Crises Management. Planning, analyzing and evaluating how to handle stressful, harmful, or safety-related hazards that occur intentionally or un-intentionally (such as violence, injuries, accidents, fires, earthquakes, etc.) enables managers to take action rationally and rely on the team when needed.
• HR Best Practices. Learning the basics about hiring, termination, harassment, business policies, employment laws, paperwork compliance, etc., sets forth better protection for managers and organizations. Often, the number and degree of EEOC complaints, OSHA violations, wage and hour penalties, or other claims are reduced when managers receive training on these topics to assist them in making informed decisions. 

Tracking the Hours Worked for Your Exempt Employees

The exempt verses non-exempt employee classification issue continues as a common area of confusion among employers. Often, many employers who are unfamiliar with the nuances of the issue also face practical challenges, including when and how to track hours for exempt employees.  

To be classified as exempt, the employee’s job generally must satisfy both a salary basis test and a duties basis test. Exempt employees generally must be paid on a salary basis, meaning they must be paid a fixed salary each week. The U.S. Department of Labor (DOL) enforces regulations that define the salary basis requirement to satisfy the exempt status tests. Exempt, Administrative, Executive, and Professional employees must be paid a predetermined amount each pay period that is at least the minimum weekly salary required by the regulations. The current federal minimum is $455 per week; however some states require a higher minimum weekly salary to satisfy this test. The amount paid may not be reduced because of a variation in the quality or quantity of the work performed.   

Non-exempt employees are typically paid on an hourly basis and entitled to overtime compensation. According to the federal Fair Labor Standards Act (FLSA), employers are required to track the hours worked and meal periods for nonexempt employees. This requirement ensures that such employees earn at least minimum wage plus overtime compensation for any hours worked above 40 in a work week (and in some states, for any hours worked above eight in a workday).   

However, nothing in the law prohibits an employer from keeping track of an exempt employee's hours. Some valid reasons for tracking exempt employee hours can still be compelling. For example, an employer may opt to track an exempt employee’s hours for purposes of client billing, Family Medical Leave Act (FMLA), 401(k), hours-based benefits calculations, attendance, paid time off (PTO) benefits, etc. Some employers opt to track exempt employees’ hours simply to ensure the equitable treatment of all employees regardless of classification in the company.  

With a few exceptions, exempt employees must receive their full salary for any week in which they perform work without regard to the number of days or hours worked. Accordingly, if exempt employees clock in late to work or leave early at the end of the day, the employer may not dock their pay as they may for non-exempt employees. If an employer does dock an exempt employee’s wages, such a deduction may jeopardize the individual’s exempt status.  

Should an employer opt to track the hours of exempt employees, the company will need to be very careful with respect to how it uses this information.  As explained above, the exempt employee’s salary should not fluctuate based on the number of hours worked within the workweek. Prorating an exempt employee’s salary based on hours worked may result in the loss of the exemption, which may be very costly for the business.  The company may only take a deduction from an exempt employee’s salary under limited circumstances without jeopardizing the exempt status.  These circumstances are listed below:

• When an employee is absent from work for one or more full days for personal reasons other than sickness or disability;
• For absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;
• To offset amounts employees receive as jury or witness fees, or for temporary military duty pay;
• For penalties imposed in good faith for infractions of safety rules of major significance;
• For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions;
• In the employee's initial or terminal week of employment if the employee does not work the full week, or
• For unpaid leave taken by the employee under the federal FMLA.

The U.S. Department of Labor (DOL) has developed an online resource called Enforcement Data 2.0. The online database represents a significant new employer threat as it provides public access to workplace-related information about certain companies. By leveraging database information (i.e. wage and hour, workplace injuries, etc.), the DOL and other enforcement agencies can more easily target specific businesses or industries. 

Employers face several implications about this online tool. Multiple agencies can more quickly report employers deemed as non-complaint with its workplace obligations and make the same employers more easily discoverable.  For example, if the DOL’s Wage and Hour Division enters information about an employer’s non-compliant minimum wage practices, the Equal Employment Opportunity Commission (EEOC) could potentially use the information as a basis to explore unlawful discrimination issues in terms of the company’s equal pay treatment among its employees.  In essence, the company’s exposure of designated non-compliance in one area increases the likelihood of inquiry or investigation into other areas of an employer’s policies, procedures, and practices.    

The Necessities of a Safety Manual

Employers are responsible for providing a safe workplace environment for their employees free from harm, health hazards, harassment, etc. Enforcement of workplace safety compliance is an issue that has gained increased attention from federal and state governing agencies.  

According to the federal Occupational Safety Health Administration (OSHA), an effective safety and health program can save as much as six dollars for every dollar invested.  On January 6, 2012, OSHA initiated a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel process to draft an Injury and Illness Prevention Program (IIPP) rule. Where ever your business is in terms of a safety program, a safety manual is an important starting point for any company size. As a best practice, a company’s safety manual typically includes the following: 

• Supervisor responsibilities
• Employee responsibilities
• Reporting
• Safety policies
• Equipment usage/handling
• Chemical/hazard handling
• First aid
• CPR
• Safety rules
• Documents
• Disciplinary action
• Accident reporting
• Injury reporting
• OSHA logs
• Protective uniforms
• Cleaning workspaces
• Opening/closing items  

Note: Twenty-four states operate their own OSHA-approved safety and health programs. Some state plan requirements may differ in certain aspects from federal OSHA. Regardless, state-imposed standards must be at least as stringent as the federal standards. 

Workplace Water Cooler Rumors

Many employers using technology understand the dynamic implications of workplace rumors. Rumors can create an environment of mistrust, hostility, low motivation, and low productivity. Managers who are trained to recognize the root causes of rumors and how to prevent them, or at least be able to manage rumors, can more effectively set the stage for teamwork success.

Rumors arise due to various reasons. Some reasons arise from relationships at the workplace, work stressors, and dealing with personal job satisfaction. In general, there is a natural tendency to engage in rumors or listen in to what is happening around us due to human needs of wanting to communicate, stay informed, and fit in with peers. Some employees engage in this fashion to gain more control and to see how much power they may have in comparison to others. Often, when employees do not know why certain management decisions are being made, gossip and rumors begin. A manager’s clear and effective communication style, with his or her employees, is crucial.

Managers can do a lot to address workplace rumors. Here are some top picks:

• Values. Ensure values are in line with the rest of staff. Managers should make an effort to state what will not be tolerated.
• Open door policy. Managers should welcome feedback from all employees to speak about the company and their own job positions. When managers avoid direct communication with employees, employees often feel compelled to engage in conversation about “what ifs” to what may be happening. Employees assume future developments involving staff and business practices about products or services may be changed.
• Confidential suggestion box. Managers can put up a suggestion box that allows for employees to anonymously submit in their concerns or comments in regards to what is bothering them or how things are going for them.
• Discipline. Manage employees who continue to engage in rumors and or are not mindful about workplace productivity.
• Third-party mediation. Gain more neutral input by having a third person take notes at the mediation and keep everyone on track. More specifically, if the tone / content of the conversation becomes inappropriate, they can help bring it back to an appropriate level.
• Employee independence. Employees should learn how to handle gossip on their own. Whenever a gossiper is confronted, he or she will think twice about doing it again. Avoid using the word “you” but having the person who is the target of the gossip state something in an “I” statement.

In today’s economic times, a competitive job force embraces workers with various knowledge, skills, abilities, education, and experience levels. Hiring managers attempt to compare and contrast these items when determining the best job candidate for a specific position. With respect to experience, many hiring managers consider long gaps in employment history on the resume or employment application to be a strike against a potential job candidate. However, due to the high levels of unemployment the country has experienced in the past few years, lawmakers are taking measures to ensure the job candidates who have experienced recent periods of unemployment are still considered viable candidates.

The Equal Employment Opportunity Commission (EEOC) is the agency that oversees discrimination in hiring practices. Some of the traditional protected classes include race, color, religion, national origin, age (40 and over), disability, military or veteran status, etc. Protected classes were developed from previous anti-discrimination laws such as the Civil Rights Act of 1964, Age Discrimination in Employment Act (ADEA), Equal Pay Act, Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA).

On April 5, 2012, President Obama signed into law the JOBS Act (Jumpstart Our Business Startups) that is intended to prohibit employers from discriminating against job applicants because they are unemployed. Under the Act, it is “an unlawful employment practice” if a business with 15 or more employees refuses to hire a person “because of the individual’s status as unemployed.” Unselected job applicants will have the right to file a complaint with the EEOC if they are disqualified from consideration due to a recent period of unemployment. The JOBS Act contains the “Fair Employment Opportunity Act of 2011” (FEOA) that treats unemployed job applicants as a protected class under Title VII. The FEOA would make it an unlawful employment practice for an employer or employment agency that:

• Fails or refuses to consider or hire an individual based upon his or her status as unemployed.
• Instructs an employment agency to disqualify an unemployed individual from consideration, screening, or referral for employment.
• Refuses to consider or refer an unemployed individual for a job opportunity.
• Publishes advertisements which indicate that unemployed individuals are disqualified or will not be considered for employment opportunities.

Small Business Payroll: Administration & Management

Most small business owners would agree that their primary focus is building their enterprise. So, unless your business is in payroll  administration or payroll management, it's likely that you haven't considered the sophistication of the payroll process. Of course, we know there is more to small business payroll than simply writing and handing out checks to employees. 

In March 2012, the city of Atlanta ranked second in a tie with Marietta and Sandy Springs for entrepreneurial activity by metro area in Georgia. That said, at , we know firsthand the excitement of doing business in Atlanta and we understand small business challenges. We iron out the complex regulations of payroll taxes and unemployment taxes for you.   

Atlanta Payroll Services is based in downtown Atlanta and gives expert attention to your small business challenges. As you know, doing business in Atlanta means understanding and confronting every element of small business challenges head on. Yet, business owners can't grow their business while being hindered by convoluted rules around small business payroll, payroll taxes and unemployment taxes.

Imagine being able to focus on producing revenue and strengthening your core business functions, while feeling completely confident that your payroll management is in great hands.

Our focus is on providing a wide range of payroll services for small companies throughout Georgia. Having employees demands tax responsibility, which brings small business challenges that cannot be avoided. While you devote energy to achieving your goals, we relieve your business concerns by confidently handling payroll taxes, unemployment taxes and other small business payroll matters.  

Over the last 10 years, Georgia experienced the second largest increase nationwide in entrepreneurial activity, and the competition continues to grow. We want your business to reach its highest potential and we assist in that by expertly administrating small business payroll and all of its intricacies. In other words, we eliminate the guesswork and offer you the confidence of a job well done. Your time will be spent on growing your business instead of being consumed by sorting through payroll processing and compliance. 

If the overwhelm of payroll taxes, unemployment taxes and payroll record-keeping have you baffled, Altanta Payroll provides the solutions to make your business responsibilities less of a burden. Our experts understand confusing unemployment taxes, payroll taxes and the convoluted regulations of small business payroll. We understand the personal liability associated with employment and payroll taxes. Let us help you free up time, so you can meet every business opportunity. Our group of driven experts offers the small-town attention and personalized customer service your business deserves. 

IRS Mileage Rate. Beginning on January 1, 2012, the Internal Revenue Service (IRS) standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be 55.5 cents per mile for business miles, 23 cents per mile for medical or moving purposes miles, and 14 cents per mile for service of charitable organization miles.

HHS Final Rule on Medical Loss Ratio Requirements.Regarding the Affordable Care Act’s Medical Loss Ratio (MLR) requirements, the Department of Health and Human Services (HHS) Centers for Medicare & Medicaid Services issued a final rule that is effective January 3, 2012. The new health care law mandates that health insurance companies in the small group markets spend at least 80% of premium dollars on medical care and health care quality improvement. In addition, employer-sponsored group health plans receiving rebates must ensure that the enrollee portion of the rebate is properly distributed for the benefit of enrollees.

Mobile Phone Use Restriction. Effective January 3, 2012, a new Department of Transportation (DOT) regulation restricts commercial motor vehicle (CMV) drivers from holding, reaching for, or pressing more than one button to operate mobile phone devices while operating their vehicles. CMV drivers may still use devices as long as usage is in compliance with the new rule (i.e. devices must be mounted or securely within reach of the driver’s control panel).

Required NLRA Labor Law Posting. As a reminder, do not forget that the National Labor Relations Board (NLRB) has issued a Final Rule that requires employers to notify employees of their rights under the National Labor Relations Act (NLRA). Private-sector employers, including labor organizations, are required to post the NLRA employee rights notice where other workplace notices are typically posted. Based on a recent NLRB announcement, this notice must be posted no later than April 30, 2012; the previous date was January 31, 2012.

Form W-2. Employers must complete Form W-2, Wage and Tax Statement, to report wages, tips and other compensation paid to an employee. A copy of this form must be given to the employee by January 31st.

Georgia Small Business Owners Finally Catch a Break; a High-Tech Human Resources Solution with Small-Town Values.

ATLANTA, GEORGIA (March 14, 2012). To whom does a Georgia small business owner turn for professional and affordable payroll and HR assistance?

The needs of small businesses are unique unto themselves. Affordability, customization, employee benefit packages, remaining compliant with state and federal laws are just a few of the concerns facing today’s small business owner.

“One of the most crucial elements of running a small business today is making sure it is compliant with state and federal laws. The last thing a small business owner wants is to fail a government audit,” asserts Greg Bennett Sr., head of business development at Atlanta Payroll Services.

As well, there is the possibility of getting lost in the shuffle with the larger, publicly-traded HR firms. Enter Atlanta Payroll Services, the premier HR Solution that caters exclusively to the small business owner’s needs. Being a locally based entity enables Atlanta Payroll Services’ team of experts to consistently provide friendly, personalized customer service―one of the features that sets them apart. Additional services include plans and packages designed to suit each small business’ individual needs, such as pay-as-you-go worker’s comp insurance, time-keeping solutions, 401K options, background screening, Employee Assistance Programs, (EAP) and more.

Further, Atlanta Payroll Services offers Georgia’s small business owners the technologically advanced HR On-Demand―24/7 online access to Human Resource professionals. Learn more about this invaluable tool, and Atlanta Payroll Services, by calling 440.996.1729. Or, you may visit the company website: http://wwwatlantapayrollservices.com

The focal point of Atlanta Payroll Services is to provide optimum customer service while supplying Georgia’s small businesses with professional HR solutions, outsourcing and payroll services at affordable prices.