Benefits Compliance: 3 Areas to Focus On

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Courtesy of Fisher & Phillips LLC

2013 marks not just the start of a new calendar year, but also compliance obligation deadlines for some employee benefit plans. We have outlined a number of key provisions impacting welfare and retirement plans, as well as changes to your payroll system, to help you be prepared. Let me know if you have any questions,

Medical Plans

  • A Summary of Benefits and Coverage (SBC) must be provided to all group medical plan enrollees by the first day of the first annual open enrollment period beginning on and after September 23, 2012. This means if your medical plan is operated on a calendar year basis, you must provide SBCs to enrollees as part of your upcoming annual open enrollment period for coverage that takes effect January 1, 2013.
  • Health FSAs must be redesigned for the 2013 plan year to limit annual account balances to $2,500. Make sure to update your plan document as well.
  • Ensure that your group health plan SPDs have been properly amended to reflect any applicable changes under the Patient Protection and Affordable Care Act of 2010 (PPACA).
  • Claims’ correspondence (claims and appeals responses) must use “culturally and linguistically appropriate language” when 10%+ or more of employees reside in a county literate only in the same non-English language. The HHS website provides a list of all U.S. counties which meet or exceed the 10% threshold.   If you send a claims or appeals response to an address in a county that meets the 10% threshold, you must include a one-sentence statement in the relevant non-English language indicating how to access language services. You must also provide oral language services (such as a telephone customer assistance hotline) and, upon request, a notice in any applicable non-English language.
  • The Women’s Health and Cancer Rights Act of 1998 (WHCRA) requires group medical plans to provide an annual written notice to participants and beneficiaries of the availability of medical and surgical benefits under the plan with respect to mastectomy and breast reconstruction. Including the WHCRA notice as part of your open enrollment materials is one way to fulfill your annual notice obligations.
  • Sponsors of group medical plans must notify employees annually concerning the availability of state premium assistance through Medicaid or CHIP.  The Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA) imposes this notice requirement, which can be met by including the DOL’s model “Employer CHIP Notice” as part of your annual open enrollment materials.  For calendar year plans, the Employer CHIP Notice must be provided no later than January 1, 2013.
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3 Guidelines When Terminating an Employee

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Unfortunately, some employees don't work out - their behavior or poor performance escalates and they eventually need to be terminated. Many organizations have questions about properly carrying out terminations, including what to do to address the problem, when it's appropriate to terminate an employee, and how they facilitate the termination itself. Here are 3 guidelines when terminating an employee.

1. Address the behavior or performance problem.

Directly address the problem before you terminate an employee, whether it be a behavioral issue such as attendance, tardiness, conduct, attitude, or inappropriate behavior; or poor performance. Approach termination with fairness by bringing the problem to the employee's attention, counseling or coaching them on understanding the problem and disciplinary consequences if they do not change, and providing the necessary training and support for improvement.
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OSHA's Top 10 Safety Violations for 2012

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The Occupational Safety and Health Administration (OSHA) recently announced the top 10 most frequently cited workplace safety violations for  2012. The list includes the following:

  1. Fall Protection – General Requirements (1926.501) Total violations: 7,250
  2. Hazard Communication (1910.1200) Total violations: 4,696
  3. Scaffolding (1926.451) Total violations: 3,814
  4. Respiratory Protection (1910.134) Total violations: 2,371
  5. Ladders (1926.1053) Total violations: 2,310
  6. Machine Guarding (1910.212) Total violations: 2,097
  7. Powered Industrial Trucks (1910.178) Total violations: 1,993
  8. Electrical – Wiring Methods (1910.305) Total violations: 1,744
  9. Lockout/Tagout (1910.147) Total violations: 1,572
  10. Electrical – General Requirements (1910.303) Total violations: 1,332

Additional Safety Training

ERC offers the following Safety Training solutions:

  • OSHA 10 and 30 hour voluntary compliance
  • Lockout/Tagout
  • Hazard Communications
  • Electrical Awareness
  • Bloodborne Pathogens
  • Permit Required Confined Space Entry
  • Fall Protection
  • Fire Extinguisher
  • Forklift Operator Training
  • HAZwoper

For more information on safety training, contact Pete Bednar at 440-947-1293 or pbednar@yourERC.com.

Money Still Available for BWC Transitional Work Grants

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Over the summer, the Ohio Bureau of Workers’ Compensation (BWC) began accepting applications for the latest round of Transitional Work Grants. Grant money is still available for employers wishing to participate.

BWC’s Transitional Work Grants program gives employers the opportunity to hire a professional transitional work developer to assist with the development of BWC-approved policies and procedures focused on best practices and early return to work. The program is open to all private and public taxing district employers (cities, counties, townships, school districts, etc).
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Findings from 9 Recent Court Cases to Help You Stay Compliant

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Do you need to adjust performance expectations under FMLA? Can regular attendance be considered an essential function of a job? Is telecommuting a reasonable accommodation? Is it okay to terminate an employee after they request FMLA? Several recent court cases provide answers to some of your most common questions about administering various employment laws.

 

You may be required to adjust performance expectations under FMLA.

A decision made in 2012 by the Seventh Circuit Court of Appeals in Pagel v. TIN, Inc. finds that while employers do not need to adjust performance standards for the time an employee is actually on the job under the Family Medical Leave Act (FMLA), FMLA can require that performance standards are adjusted to avoid penalizing an employee for being absent during their leave.
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New FCRA Forms for 2013

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The Consumer Financial Protection Bureau (CFPB) has issued changes to the notices required by the Fair Credit Reporting Act (FCRA). The changes simply direct consumers to the CFPB instead of the Federal Trade Commission (FTC) for more information and there aren't any other changes to the content or spirit of the notices. Please note that you can begin using the new form at any time, and your current form is also acceptable until January 1, 2013. The forms MUST be updated by January 1, 2013.

This article was provided by ERC partner Corporate Screening Services. ERC Members receive a minimum of 5% discount off standard background screening products through this partner.

The notices that have changed are listed below. You can view the forms by clicking on the form title and they are available on Corporate Screening's Resources page, www.corporatescreening.com/resources/overview, located at the bottom of the page under the header "Forms."
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What is ADA?

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The Americans with Disabilities Act (ADA), enacted in 1990 and amended in 2008, prohibits private employers with 15 or more employees, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in employment activities. Such activities include hiring, termination, training, promotion, compensation, and other terms and conditions of employment.
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What is Discrimination?

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Discrimination in the workplace refers to when an individual or group of individuals are treated less favorably than others solely because of their race, sex, pregnancy or marital status, age, disability, religion, sexual preference, trade union activity, or other class or characteristic protected under federal or state legislation. It is illegal for employers to discriminate against individuals from protected classes in the workplace if they are current or prospective employees, such as job candidates.

Laws Covering Discrimination

There are a number of important federal laws that cover discrimination of protected individuals. Some states have additional bases on which discrimination is prohibited. Federal laws governing discrimination in the workplace for private employers in 2012 included:

The Equal Employment Opportunity Commission (EEOC) is the federal agency that is responsible for enforcing these laws and handling discrimination claims. It frequently provides guidance and information about recent cases and claims to help employers enforce these laws in the workplace.

Discriminatory Employment Practices

Under these laws, it is illegal for employers to discriminate against individuals in protected classes for employment decisions related to hiring and firing; compensation; assignment or classification of employees; transfer and promotion; layoff or recall; job advertisements; recruitment; testing; use of company facilities; training programs; fringe benefits; retirement plans; disability leave; and other conditions, terms or benefits of employment.

This means that employers cannot make employment decisions based on any factor protected under law. For example, employment discrimination could occur if an employer pays equally-qualified employees different salaries based on their sex or race, excludes potential employees from the hiring process based on their religious affiliation or race, lays off an employee based on them being in a protected class, denies a promotion to an otherwise qualified employee who can perform the essential functions of the job because he or she has a disability; or states preferred characteristics which are protected under law in a job ad.

Additionally, individuals covered under this legislation are protected from four types of discriminatory practices including:

  • harassment on the basis of their protected class;
  • retaliation from their employer based on filing a charge of discrimination, participating in an investigation or opposing discriminatory practices;
  • employment decisions based on stereotypes, assumptions, or myths about the abilities, traits or performance of individuals within a certain class;
  • denying employment opportunities to a person because of marriage to or association with an individual of a particular class

Disparate Impact and Treatment

Discrimination can be manifested in either disparate treatment or disparate (otherwise known as "adverse") impact. Both types of discrimination against protected classes are prohibited under federal law.

It is unlawful for employers to use practices that have disparate impact on a protected class unless the characteristic can be deemed a “bona fide occupational qualification.” In cases of disparate impact, employers do not intentionally and explicitly have policies or practices in place that exclude or discriminate against individuals in protected classes. Policies or practices that seem neutral, however, can adversely impact a protected class. A common example of disparate impact is testing all job applicants on a particular skill or ability and disproportionately eliminating African Americans based on the results, even though this practice is not intentional.

Disparate treatment is also illegal, but differs from disparate impact in that it is intentional discrimination. With disparate treatment, an employer intentionally treats individuals of a protected class differently than other employees or job applicants to control an outcome.

Your Responsibilities As An Employer

Employers are required to post notices describing the federal laws prohibiting job discrimination based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Employers must also keep certain records, regardless of if a charge has been filed with them, including certain workforce data in the annual EEO-1 report. In addition to these obligations employers should:

  • Develop and implement a clear policy prohibiting discrimination in the workplace and retaliation against an employee making a discrimination complaint
  • Train supervisors and managers on employment discrimination
  • Refrain from asking about protected characteristics in the hiring process
  • Regularly evaluate hiring and selection practices for adverse impact
  • Conduct compensation audits to assess pay equity
  • Document objective, performance, and job-related reasons for all employment decisions

For more information about workplace discrimination, ERC members can access our HRresources or contact ERC's HR Help Desk at hrhelp@yourerc.com. Not a member? Join today and access tons of HR resources, posters, forms, information, guidance, and legal trends and updates to help keep you compliant.

 

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. The data used in this article reflects the current laws in 2012.

Additional Links & Resources

Prohibited Employment Policies/Practices (Source: EEOC)

Federal Laws Prohibiting Job Discrimination Questions & Answers (Source: EEOC)

Guide for Employers: The Charge Handling Process (Source: EEOC)

Discrimination in the Workplace (Source: HR Hero)

Engineering Salaries Continue to Thrive

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Once again the ERC Salary Survey demonstrates the strength of the region’s Engineering industry. The 2012 Salary survey reports data on 38 separate engineering positions, with the bulk of the job titles falling into the “Professional” job classification. The strength of the industry is further reinforced by comparing median salaries among engineering positions in lower level job classifications to other job titles outside of engineering. For example, Service Installation Representatives (both junior and senior level) make up 2 of only 9 office/clerical positions with median salaries over $40,000. Similarly, at the supervisory and managerial level, the median salaries for engineering jobs all fall within the top 40%- with Engineering Manager / Chief Engineer near the very top of the list as one of only seven jobs reporting a median salary at $100,000 or above.

Despite strong local salary data trends, national employment trends suggest that the engineering field may be mixed in terms of job growth projections depending on the specific position. In particular the BLS Occupational Outlook Handbook in 2012-2013 notes that in terms of job growth engineering positions based in manufacturing may struggle to keep pace with those in service industries and architectural fields. However, with an average project job growth rate from 2012-2020 of 10% and much higher for niche areas such Biomedical Engineers (62% job growth) and Environmental Engineering Technicians (24% job growth), engineering appears to be more than capable of sustaining and even improving upon these salary numbers for the foreseeable future.

Additional Resources

To purchase or view the most recent ERC Salary Survey, click here. Or, e-mail surveys@yourerc.om or call 440-684-9700.