How to Prevent a Retaliation Claim

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Over the past several years, charges of retaliation filed with the Equal Employment Opportunity Commission (EEOC) have significantly increased, making retaliation a major legal risk that employers face. Here are several ways that employers can prevent retaliation.

Know what employment actions are considered "adverse."

An employee can sue for retaliation if they suffer a tangible, adverse employment action - such as loss of income or employment as a result of engaging in a protected activity. They must prove that there is a connection between their protected activity and the employment action they received. Examples of adverse employment actions could be a demotion, termination, or pay cut. A negative performance review may or may not be considered adverse depending on the circumstances.

Be aware that perception is reality when it comes to retaliation.

You may not intend to hurt an employee, but an action can still be perceived as retaliatory if an employee sees it as such. For example, reassigning or transferring an employee to another location, shift, or role or even separating employees from one another can be perceived as an adverse action if the action results in an outcome that is less desirable to the employee.

Address complaints promptly and respectfully.

Take complaints seriously and treat them with respect and care - they are indicators of dissatisfaction and usually precursors to a lawsuit. Start by establishing a policy against retaliation which communicates that your organization does not tolerate retaliation and explains the steps employees should take if they have complaints. Research complaints thoroughly and document the actions you take to address them.

Make and maintain a list of protections.

Create and maintain a list of all protections under law and distribute it to decision-makers, including supervisors and managers. These protections should include employees requesting FMLA, reasonable accommodations, and those employees in protected classes (race, national origin, religion, etc.). Make sure that decision-makers are aware of the types of activities which are protected under law.

Time your decisions accordingly.

Timing is one of the most important pieces of evidence that usually supports a retaliation claim. The longer the timeframe between the protected activity and adverse employment action, the more often courts have dismissed such claims. Refrain from taking adverse employment actions close to a complaint or protected activity.

Channel major employment decisions through HR.

Require a trained HR professional to be involved in any employment decisions, particularly those that negatively affect an employee. Conduct a thorough HR review before proceeding with a disciplinary action (i.e. warning, suspension, termination, etc.) for any employee who engages in a protected action and make sure that you have plenty of documentation to back up your decision.

Train and educate supervisors.

Supervisors can be major culprits of retaliatory decisions and it's important to make sure they are not making any decisions that could be unlawful. While they may feel so inclined to "get back" at an employee, the risks of doing so often far outweigh any benefit. Share specific examples of retaliation by supervisors, common scenarios, and procedures they must follow to avoid retaliation.

On a final note, when it comes to preventing retaliation in the workplace, it's best to consult case law, your attorney, and the EEOC's website for more guidance on the subject.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

Additional Resources

Supervisor & Manager Training: Employment Law

In this series, supervisors and managers learn about potential legal issues such as workplace discrimination and harassment, managing employee leaves of absence, and employee performance issues. Supervisory Series is offered in AM or PM sessions.

What is the Difference Between an MCO and a TPA?

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If you are responsible for your workers’ compensation program, it is important to have a fundamental understanding of the roles of a MCO and a Workers’ Compensation Third Party Administrator (TPA). MCOs and TPAs play unique roles in helping employers control workers’ compensation costs.

What is a MCO?

Under Ohio's Health Partnership Program, MCOs are responsible for the medical management of Ohio employers’ work-related injuries and illnesses. Every employer in Ohio must have a MCO, which is paid for directly by the Bureau of Worker's Compensation.

The core MCO functions include:

  • Collecting initial injury reports and transmitting to BWC;
  • Management and authorization of medical treatment to be received by an injured worker;
  • Medical review and bill payment processing;
  • Maintaining a network of BWC-certified healthcare providers;
  • Return to work services;
  • Utilization review;
  • Providing Peer Reviews as necessary for treatment decisions;
  • Processing treatment appeals through the Alternative Dispute Resolution (ADR) process; and
  • Training and education.

Further, MCO associates are medical professionals and their processes are clinically focused. They work diligently to help employers avoid the most costly of claims, i.e. lost time claims – when an injured worker is off work for eight or more consecutive days. With clinicians managing the medical care and transitioning injured workers back to gainful employment, employers are better able to manage their long term insurance premiums.

What is a TPA?

A Third Party Administrator (TPA) assists employers in the administrative and financial aspects of a claim.

The core TPA responsibilities include:

  • Providing risk management consulting to employers;
  • Administering compensation group rating savings programs and other discount program consulting;
  • Pertinent claims investigation;
  • Claims administration;
  • Industrial Commission hearing attendance;
  • Evaluation of claims for workers' compensation coverage; and
  • Assisting employers in the development of workers' compensation cost control strategies.

 

TPA staff typically consists of claim representatives, account representatives, and other workers' compensation professionals. 

ERC is proud to endorse CareWorks as the preferred workers’ compensation Managed Care Organization (MCO) for members. For more information, click here.

Military FMLA: Wading through the Confusion

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Verifying Next of Kin

According to the Department of Labor:

"Next of kin of a covered servicemember" means the nearest blood relative other than the covered servicemember's spouse, parent, son, or daughter, in the following order of priority: Blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA.

When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember's next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember's only next of kin.

How is an employer supposed to know if a next of kin has been designated?

Verifying next of kin can isn’t as easy as it sounds. Here are some guidelines which will help employers in this situation when next of kin needs to be determined:

  • The Emergency Contact Form (DD0093) would rank employee’s relatives. This will help determine Next of Kin. For example, if the servicemember didn't have brothers/sisters, child, spouse, or parent, then maybe they would list their cousin or uncle as an emergency contact and beneficiary.
  • To obtain the DD0093, the employer can contact:
    • Army orders verification should be sent to hrc.foia@conus.army.mil
    • For all other branches of the armed forces: To identify a contact person, an employer should look at the military order and conduct an Internet Search to locate of the unit/battalion the servicemember is assigned. There is no general location/number employers can use to verify the validity of the orders. Employers are going to have to do some research to find the appropriate officer in charge of the unit/battalion.

This link has contact information for all the branches of the armed forces. Each branch can provide verification of active duty dates of service. The verification of orders is given by the unit officer in charge of the service member.

Military orders for Marines, Air Force, and Navy will detail what unit or battalion the servicemember is assigned.

The links below can be used to locate contact information for the unit the servicemember is assigned. The employer should contact the officer in charge of the unit to verify the orders.

The Air Force doesn't have a main location on the web which has all the units and contact information. An employer’s best option is to conduct an Internet Search of the unit indicated on the orders to locate a contact person.

Questions please contact:
Holly Moyer, M.Ed., CRC
Sr. Absence Management Consultant
(440) 937-9507
Holly.moyer@careworks.com

9 Common (and Avoidable) FMLA Mistakes

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There is probably no law that gives HR more headaches than the Family Medical Leave Act (FMLA). Even the most adept and experienced HR professionals make errors when administering FMLA. It’s hard not to make mistakes, given the emergence of new case law as well as state and federal regulations that are constantly expanding the scope of employee leave and employer’s obligations in administering that leave.

One small mistake with FMLA, however, can cause big consequences for your organization. Here are 9 of the most common (and avoidable) FMLA mistakes.

  1. Not counting leave as FMLA. If your organization does not run FMLA concurrently with other paid time off, sick leave, disability, or worker’s compensation, it may incur lost work time which can lead to significant costs. Also, some employers may not track time that should be qualified as FMLA leave, especially when reasons for employees’ leave or time off are not known by HR.
  2. Disciplining employees for FMLA-protected absences. It’s not uncommon for employers to penalize employees for absences, but when FMLA factors into the absence, tread carefully. If employees are eligible for FMLA and are qualified to take leave, they are protected, even though your attendance policy may be very specific. Disciplining or terminating an employee for taking leave may not be an appropriate or legal measure to take.
  3. Taking adverse action after denying leave. Denying an employee’s request for FMLA and then taking a series of adverse actions following that request can be a fatal mistake. While these actions may be warranted, employers need to watch their timing. If you deny an employee’s request for FMLA, then immediately follow-up with a termination, it could suggest that the employee’s FMLA request was linked to the termination. Plus, the courts have been especially mindful of retaliation charges lately.
  4. Failing to communicate your FMLA policy and procedure. As an employer, you must let employees know about their rights under FMLA. A 2012 ruling suggests that you must also communicate the procedure by which leave needs to be taken and how you are tracking employees’ time (i.e. rolling calendar year measured forward/measured backward etc.). Even misinforming employees of the time in which they are eligible for FMLA can be a liability.
  5. Allowing your supervisors to manage FMLA. Supervisors are usually the first people employees turn to when they need to take leave. Sometimes, however, supervisors don’t realize that they must direct the employee to HR and not handle FMLA cases on their own. Be sure that your supervisors know how to respond when employees ask for leave. Otherwise they could face personal liability for FMLA violations.
  6. Making assumptions about an employee’s health condition. Making judgments about whether employees have a serious health condition or not without the necessary information can be disadvantageous. Employees may present clear signs of a serious health problem or the condition may be less visible. Take each employee’s request for FMLA seriously and ask for appropriate documentation if you question its validity.
  7. Not verifying or clarifying FMLA documentation with health care providers. Employers may clarify any documentation they receive from health care providers, ask for second and third opinions, and make sure that the employee who is requesting leave does in fact have a serious health condition. Also, know that requiring too much or too little medical documentation could result in liability. Don’t ask for too much, but don’t accept too little.
  8. Removing an employee from their prior job. An employee goes out on leave, perhaps you find that another employee can perform the person’s job better, and then you consider terminating the returning employee or moving them into a lower position. Be aware that unless you have adequate performance documentation to demote or terminate the individual, FMLA regulations say that the returning employee is entitled to their same job or one of equal pay, responsibility, and benefits.
  9. Not providing a reasonable accommodation. Although FMLA only allows for 12 weeks of unpaid leave, your organization may need to explore other reasonable accommodations following FMLA leave if employees have a disability or medical condition that is protected under the Americans with Disabilities Act (ADA). Under ADA, an extension of unpaid leave could be a reasonable accommodation in some circumstances. Oftentimes, both FMLA and ADA apply, especially when serious health conditions are present.

Employers unfortunately can pay a steep price for their mistakes in administering FMLA—whether they are honest or intentional. Our best advice for avoiding FMLA mistakes is to maintain open lines of communication with employees and managers, stay up to date on FMLA case law, don’t make assumptions, keep excellent documentation, and be conscious of the timing of your decisions.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application. 

Proposed Changes to FMLA

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In 2012, the Department of Labor (DOL) announced proposed changes to Military FMLA and changes which would affect Airline Flight Crew Employees.   Secretary Solis discussed the amendments at Joining Forces for Caregivers, an event held Monday January 30th, 2012 in Washington, D.C.  

“Keeping the basic promise of America alive means ensuring that workers, from our servicemen and servicewomen who keep us safe at home to the flight crews who keep us safe in the skies, have the resources, support and opportunities they need and have rightfully earned,” said Secretary of Labor Hilda L. Solis in a press release. “The proposed revisions… are an important step toward keeping that promise.”

Changes to Military FMLA

Changes proposed would permit an employee to take leave during or following an immediate family member’s deployment for matters related to the person’s service (e.g., military briefings, financial or legal arrangements).  The 26-workweek option would be extended to care for family members who are veterans with an illness or injury that occurred in the line of duty, including conditions that have arisen only after the veteran had left the service.   The five days a family member can spend with a military member while on rest or recuperation is likely going to increase up to 15 days.   The FMLA coverage, which only covered the National Guard for qualification of exigency leave in 2012, would also extend to family members serving in the armed forces.

Airline Flight Crew Changes

Due to the way crew members currently work, the hours are difficult to track.   The proposed changes are intended to create a more accurate and simple way to account for the hours.   The proposed revision for airline flight crew employees would add a special hours of service eligibility requirement and specific alterations for calculating the amount of FMLA leave.

For more information, contact Scott Vaka at CareWorks USA at 614-760-3536 or scott.vaka@careworks.com.

Congress Passes Payroll Tax Cut Extension

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Congress had approved an extension of the payroll tax cuts and unemployment benefits from February 29th, 2012 to 2013. The extension was passed by both the House of Representatives and Senate, and President Obama has signed the legislation into law.

The extension of the tax cuts will reduce payroll tax by 2% to 4.2%. It will also extend federal unemployment benefits. 

Survey Highlights Common FMLA Administration Practices

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A 2011 survey conducted by ERC and CareWorks USA highlights common Family Medical Leave Act (FMLA) administration practices pertaining to tracking, calculating, and managing leave.

Most Northeast Ohio organizations are tracking FMLA using manual methods. The most common way organizations track FMLA is using timesheets and attendance cards (52%). Over 30% of organizations also track FMLA using Excel (36%) and/or through payroll (35%).

The survey also sheds light on how organizations administer other facets of FMLA, including how FMLA is calculated and whether it is run concurrently with other benefits. The survey found that few employers are using the calendar method to calculate FMLA and instead, using rolling 12 month periods. Specifically, 59% of employers reported using a rolling 12 month period measured backwards to calculate FMLA. Conversely, 34% of respondents use a rolling 12 month period measured forward.

In addition, many employers run FMLA concurrently with other benefits. The graph below highlights the most common benefits run concurrently with FMLA by employers.

"Running benefits concurrently helps eliminate benefit 'stacking.' While an employer wants to ensure employees are afforded the time off they need under FMLA, it is essential that they run FMLA concurrent with STD, WC and other medical leaves as appropriate to avoid any prolonged absences beyond the protected leave," explains Holly Moyer, Sr. Disability Management Consultant at CareWorks.

To download the full results of the survey, please click here. Or, to learn more about CareWorks and the services they can provide for ERC members as a Preferred Partner, please click here.

OSHA Summary Must be Posted By February 1

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As a reminder, OSHA rules require employers to post the OSHA 300 summary form of occupational injuries and illnesses occurring between January 1 and December 31, 2011 by no later than February 1. Employers, however, do not need to post the full log of workplace-related occupational injuries and illnesses.

Please note that the summary form needs to be completed even if no work-related injuries or illnesses were recorded and requires the certified signature of a company executive. Employers must keep the summary posted through April 30.

Employers can download these forms at the link below:
http://www.osha.gov/recordkeeping/RKforms.html

Compliance and Tracking are Key FMLA Challenges

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According to the 2012 ERC/CareWorks FMLA Practices Survey, Northeast Ohio employers face numerous challenges associated with administering employee leave under the Family Medical Leave Act (FMLA). The survey cites that the biggest challenges employers face when administering leave under the Family Medical Leave Act (FMLA) are tracking leave, determining the overall costs associated with FMLA absences, and overall legal compliance. Determining what constitutes a serious health condition and meeting paperwork deadlines designated by the Department of Labor (DOL) were also cited as challenges, but were less common.

Additionally, 56% of respondents said they believe they are capturing all situations at their organization which should be designated as FMLA, further suggesting that several employers are experiencing challenges with tracking and administering the law.

"Employers spend a significant amount of time administering FMLA, but continue to struggle with compliance.  Every step of the FMLA administration process requires a substantial amount of detail, so an employer needs someone who is highly trained on the FMLA regulations and can stay on top of each claim on a daily basis," says Holly Moyer, Senior Disability Management Consultant at CareWorks. Holly adds, "The legal exposure for FMLA is on the rise, therefore it is critical for employers to have a well governed FMLA Administration program in place that focuses on compliance and consistent claim handling."

To download the full results of the survey, please click here. Or, to learn more about CareWorks and the services they can provide for ERC members as a Preferred Partner, please click here.

ERC Preferred Partner CareWorks provides Absence Management and FMLA Administration. ERC Members save 5% off per EE per month fee or a $500 discount off Initial Set-up Fee