How to Prevent a Retaliation Claim

Share on LinkedIn Share on Facebook Share on Twitter Share on Google Plus Share this Page

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.

Bandwidth Battles: Streaming Content Takes a Hit

Share on LinkedIn Share on Facebook Share on Twitter Share on Google Plus Share this Page

As the mid-afternoon lull sets in, you decide to check in with a few folks. When you poke your head in and say hello, you get no response. With their headphones in and Pandora buried beneath a cascade of windows on their desktop, you can see that this employee is clearly focused on the task at hand. You move on to the next cube over- headphones again. Oh well, you can stop by again tomorrow, besides there’s a new Pandora station you’ve been meaning to try.

But what if Pandora wasn’t an option anymore? What about YouTube, ESPN.com, or any other site containing streaming audio or video? Employees all across the country are finding out as more and more employers are unable to keep up these bandwidth hogs.

CNN cited Proctor & Gamble as yet another prominent example of an organization forced to make the decision to block certain sites with streaming content. For P&G employees, Pandora and Netflix are now a thing of the past, but interestingly, both YouTube and Facebook remain accessible.

Their decision to block some but not all streaming content sites reflects yet another challenge that organizations are facing related to streaming content. Even as they ban some sites, organizations must balance their need to preserve network bandwidth, while still retaining access to sites that employees utilize for job related activities, such as marketing or professional networking.

So where does your workplace fall on this continuum from total restriction to total access of streaming content? Has the ongoing struggle for sufficient bandwidth forced your organization to block streaming content? Is bandwidth capacity the issue or is the ban more closely related to questions about employee productivity or other factors?

For more news like this, sign up to receive our weekly newsletters here.

Most Companies Can Benefit From a Plan Audit

Share on LinkedIn Share on Facebook Share on Twitter Share on Google Plus Share this Page

401(k), 403(b), pension plans and health insurance plans are wonderful perks to offer employees. But, many companies don’t understand the compliance required by the Department of Labor (DOL) and the Internal Revenue Service (IRS) that goes along with offering these benefits to employees.  The DOL and IRS have various filing and audit requirements that are applicable to these types of plans. Understanding what they need is imperative in making sure the plans maintain their tax-exempt status. 

When is a benefit plan audit required?

As a general rule – most benefit plans are required to file a Form 5500 (Annual Return/Report of Employee Benefit Plan) on a yearly basis. The amount of information included on the Form 5500 will vary depending on the type of plan in place.  If a plan has over a certain number of employees, they may need to have an annual audit of their plan performed, as well.

What actually triggers the plan audit requirement is the number of eligible employees a company has. Generally, when a company has more than 100 eli­gible employees, an annual audit is re­quired. However, you can’t just count all the people participating in the plan to determine whether or not you need the audit; you need to take into consideration eligible employees, as well. Eli­gible employees are those currently par­ticipating plus those who elected not to participate in the plan.

Companies with less than 100 eligible employees only need to file the Form 5500 as a small plan; they do not need an audit. But, companies with more than 100 eligible employees have to file the tax return along with the annual audited financial statements.  There are also certain exceptions for some types of plans with less than 100 eligible employees, stating that a Form 5500 is not required to be filed at all.

The due date of the filings for both the Form 5500 and audited financial statements relates to the due date of the Form 5500. For a calendar year-end plan, the Form 5500 should be filed by July 31, 2012. They also have the option to file for an extension, which gives them until October 15, 2012. Typically, April or May is when companies start to get questionnaires and draft Form 5500s from their third party administrators. This is a good time to address the audit requirement question.

The DOL imposes strict financial penalties when the Form 5500 either isn’t filed at all or is filed im­properly. These penalties are assessed per day and can be as high as $50,000 per report, per year for a deficient filing.

 

If an annual audit is required, what’s next?

The next step would be to find a firm to perform the audit work. Many com­panies look at the firm that does their annual accounting and tax work to see if they perform employee benefit plan audits, as well. Some accounting firms have separate employee benefit plan audit departments with dedicated staff; others do not. Once you find a firm to handle the audit, ask questions: How many other plans does the firm handle? Does it handle all types of benefit plans?

There are three types of benefit plans:

  1. Defined contribution plans – one example of which is a 401(k).
  2. Defined benefit plan, where the participants don’t contribute, but the company does — the most common ex­ample of which is a pension plan.
  3. Health and welfare plans – that offer health insurance and disability-type insurance to employees.

Firms that specialize in employee benefit plan audits have dedicated staff that work on the audits and go through specialized training, and have a streamlined audit process. Companies will also want to find out if the accounting firm is a member of the American Institute of Certified Public Ac­countants Employee Benefit Plan Audit Quality Center. They should also ask what the audit process is going to entail. How much as­sistance is going to be required on the company’s part? They should know go­ing forward how much time their em­ployees would spend assisting the firm with getting the audit completed.

Who will be involved on the company side?

Human resources and/or the accounting department will work closely with the au­ditors because they handle payroll and ben­efits and have all the documentation for what people choose to contribute, along with per­sonnel records and payroll information. Those people are the ones who will put the most effort into getting the documen­tation ready for the auditors.

How long does the audit process take?

It depends on how quickly the auditors can get the information. Typically, the actual fieldwork, where the firm is on-site reviewing original documents, takes anywhere from a day to a week, depend­ing on the size of the benefit plan. Many times the auditors will leave, but have items they want to follow up on. The whole process – from fieldwork to issuing the financial statements to getting the open items cleared – is usually a four- to six-week process.

The Form 5500 and annual audit process can be confusing for those that are new to the process or for those that don’t fully understand all of the compliance requirements that go along with operating the plans.  It really makes sense to talk to a specialist to make sure all of the plans are filing the appropriate documentation on a yearly basis.

Source: Gisondo, D. (2012). Skoda Minotti

Exclusive! ERC member companies can receive their 2011 Benefit Plan Audit at no cost and Lock in their 2010 Rate for the Next Five Years. Click for more details on Benefit Plan Audits, or contact Dani Gisondo at 440/449-6800.

ERC Partners with Turning Technologies

Share on LinkedIn Share on Facebook Share on Twitter Share on Google Plus Share this Page

ERC has partnered with Turning Technologies (www.turningtechnologies.com), based in Youngstown with a national presence, to offer its members discounted pricing on purchases and rentals of their interactive response sytems. ERC members will receive 15% off purchases and $100 of rentals.

Turning Technologies provides response systems to organizations to create engaging, interactive environments that support learning initiatives. Response systems allow speakers to ask questions during presentations with polling software and receive instant participant feedback with handheld response devices.

This is an exciting product that we’re able to offer our members at a significant discount. Whether you’re in an office or industrial environment, the ability to gather data instantly strengthens any meeting or event.
Pat Perry, President of ERC

Click for more information on Turning Technologies.

7 Lessons on Managing Open Workplaces

Share on LinkedIn Share on Facebook Share on Twitter Share on Google Plus Share this Page

Recently, there has been considerable research and debate on whether open work environments improve or impede employees’ performance and productivity.

On one hand, open work environments naturally encourage collaboration, teamwork, socializing, and innovation. They allow employees to move around, create discussion, and collaborate spontaneously. They lead to more informal mentoring, problem solving, rapid information sharing, and easier communication between peers, and can even decrease misconduct.

On the other hand, most organizations that move to an open work environment face challenging management issues. Open work environments can lack private or quiet space for concentration, contain loud noise levels, lead to frequent interruptions, and decrease productivity or performance for some employees.

It’s clear that in practice open work environments can enhance a workplace and improve collaboration, but also pose issues that need to be managed. Here are some important lessons other companies and research tell us about how to effectively manage the open office work environment.

The open office is not for everyone...or every business.

There are employees whose job function, nature of work, and personality benefit from private individual space. For example, mathematical and computer science jobs tend to require long periods of heavy concentration; introverts tend to be more creative and productive in private spaces; and younger employees tend to like open workspaces more than older employees. Don't assume that open spaces work for everyone's job or situation. Consider your generational make-up, types of jobs, and business climate before making the move.

Setting creative rules can help eliminate common problems.

Gather employees together to set basic informal rules and "cube etiquette." This helps alleviate common issues of disrespect and frustration with coworkers in open office settings. These rules could address how to creatively deal with issues such as interruptions, hygiene, noise, and personal business. Have employees participate in creating a respectful work environment. Don’t set the rules for them.

Organizations need to train on soft-skills.

Open work environments prompt frequent interpersonal interactions which naturally lead to more frustration and conflict. Your organization needs to be prepared to train employees and managers on the skills they need to make the environment work. Continuously training employees on soft skills such as respect in the workplace, communication, collaboration, and conflict management is imperative to keeping these interactions positive and constructive.

Listen and keep an open dialogue.

Research shows that employees generally won't come forward with complaints about their work environment or address them directly with their coworkers. Keep an open dialogue with employees – especially during the months of the transition – on what’s working and not working. It shows that you care about their response to the change.

Balance individual and group needs - be flexible.

Effective open work environments seem to provide enough accessible individual (hoteling or individual spaces) and cafe-like or conference room spaces - balancing the needs of private individual work time and space for collaboration, meetings, and open communication. They also give employees the freedom to work how and where they want and still allow employees the ability to individualize their space.

Natural separation and groupings should be utilized.

Put "like-groups" together within a larger space. Employees who use the phone frequently could be grouped in a space, while employees who don't could be grouped in a different space. Another best practice is to place employees in the same department and/or highly interdependent departments within the same work area.

Small details need to support productivity.

Light, color, amount of space, and placement of chairs or desks may seem like unimportant details, but they can make a big difference in comfort and productivity. Light levels can cause headaches or lack of focus; color can energize (or de-energize) your staff; if employees don't have sufficient space to work, they can be uncomfortable. All these things affect output and need to be managed.

Break down impediments to productivity and performance.

If you find that employees aren't getting much done, having to work at home to finish projects, that their performance is suffering, that their best ideas are coming from outside of the workplace, or that there are frequent conflicts between coworkers, your open work environment may be creating problems. Enabling performance and creating an environment where work can get done productively should be your number one goal.

Pilot a layout to test an open work environment.

Try an open layout with one department or a particular location before rolling it out to your entire organization. Observe how employees react to the new work environment.

Open work environments can be highly beneficial to an increasingly team-oriented workforce, but they need to be managed in ways that make employees feel comfortable and productive in their spaces, limit negative effects on performance, and support a respectful and collaborative work atmosphere.   

Additional Resources

Soft-Skills Training for Employees & Managers
ERC offers numerous soft-skills training for both employees and managers on a broad range of topics including communication, conflict resolution, generational differences, team-building, respect in the workplace, internal customer service, dealing with difficult people, and more. All of our courses can be customized to meet your organization’s needs. For more information, please contact ckutsko@yourerc.com

Office Products & Services ERC’s network of Preferred Partners provides discounts on a range of products and services to help your organization enhance its workplace experience for employees from technology solutions to food and catering services to office supplies. 

ERC Endorses CareWorks as Preferred MCO

Share on LinkedIn Share on Facebook Share on Twitter Share on Google Plus Share this Page

ERC is proud to endorse CareWorks as the preferred workers’ compensation Managed Care Organization (MCO) for members.

“CareWorks’ customer service philosophy, effective return to work strategies and quality medical management efforts can provide significant benefits to employers. CareWorks can also deliver substantial medical savings through provider network discounts. These discounts can help employers reduce claim costs and help control future premiums,” comments Pat Perry, President of ERC.

To register for a free event from CareWorks about what your MCO should do for your business, click here.

What is the Difference Between an MCO and a TPA?

Share on LinkedIn Share on Facebook Share on Twitter Share on Google Plus Share this Page

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.

New Free Services Offered to ERC Members

Share on LinkedIn Share on Facebook Share on Twitter Share on Google Plus Share this Page

ERC is excited to offer two new, free services to ERC Members! These new services are direct results from feedback provided by ERC Members.

netwERC Groups

Our new netwERC Groups are exclusive networking events for ERC Members that provide an opportunity to meet other HR practitioners in your area, network, and share ideas. These events were first held throughout the month of March with many ERC Members as hosts. We thank the ERC Members who joined us for making these events so successful, and invite all ERC Members to join us again in June for the next round of netwERC Groups. We hope to see you there!

Global HR Resources

Due to our members’ growth of international operations and questions about how to manage employees outside the U.S., another new service that ERC is proud to provide to our members is the addition of several new global HR resources available through our HR Help Desk. ERC members can now receive guidance on HR policies and practices in other countries, international compensation data and employment law, and managing global employees or assignments.

We thank our members for providing suggestions and feedback in helping to shape ERC membership. If you would like additional information on these services or additional resources available through ERC Membership, please contact the ERC Membership Team at membership@yourerc.com or 440/684-9700.

Why Your Business Can't Afford to Ignore Wellness

Share on LinkedIn Share on Facebook Share on Twitter Share on Google Plus Share this Page

If your organization thinks workplace wellness is just a passing trend, think again. Investments in workplace wellness programs are paying huge dividends for employers. Plus, many organizations are finding that workplace wellness programs are a strategic priority when it comes to saving money, engaging employees, and creating a more productive workforce. Here are a few reasons why your organization can't afford to ignore workplace wellness.

Wellness programs reduce costs.

It's the most obvious benefit: wellness programs save your organization money on health insurance and reduce a number of other associated costs including use of sick time, workers' compensation, disability management, and absenteeism. Health benefits are arguably the second largest employee expense for organizations and one of the most volatile costs from year to year. Wellness programs are one of the best tools available to reduce health care costs over the long-term.

Smaller businesses are more affected by poor health.

Smaller organizations are more affected by poor employee health than larger organizations. They are less able to absorb additional health care costs, and extended absence or frequent use of sick days can significantly affect their business operations. Additionally, decreases in productivity or engagement (even by just one or a few employees) because of poor well-being can also affect smaller businesses more than larger organizations.

The demands of the workplace are increasing.

More and more is being demanded of employees. Longer hours, expanded work weeks, and higher standards mean that employees face increased stress and worse well-being at work. These risks can lead to poor physical and mental health, which in turn affect costs. Wellness programs can enhance employees' ability to function and perform well in spite of these demands and also help employees cope with the stresses of work.

Healthy employees are more engaged.

Beyond reduced costs, healthy employees tend to be more engaged. Studies find that employees who are engaged and interested in their work are more likely to report better overall well-being and healthier outcomes, such as improvements in cholesterol and blood pressure and lower stress, than their less engaged counterparts. They are also less likely to be absent from work, and more likely to be productive, energetic, and have higher performance.

Employees want to work for organizations that care about their well-being.

It's not uncommon for employees to cite that their organization's investment in their health and care for their well-being are key reasons that they stay at their employers. Employees want to work for organizations, leaders, and managers that care about their well-being and who provide appropriate levels of support and flexibility to lead healthy, balanced lives. ERC's employee engagement research has found significant relationships between whether employees believe that their organization cares about their well-being and their perceptions of leaders, supervisors, and the overall workplace.

Wellness programs are becoming a standard benefit.

With their increasingly popularity, wellness programs are becoming a standard part of an employer's benefits package. According to our surveys, the majority of local employers offer some wellness benefit to their employees, such as health screenings, wellness coaching, access to trainers and/or dieticians, on-site clinics, healthy food options, fitness/weight management programs, or health education seminars. Also, wellness perks can be an attractive benefit to prospective employees, and especially for candidates that care about being healthy. Several leading employers, such as our NorthCoast 99 winners (www.northcoast99.org), promote their wellness initiatives to attract talent.

Wellness programs change lives.

Beyond the cost and productivity benefits of wellness programs, one of the greatest gifts you can offer your employees is a better quality of life. There are countless success stories resulting from corporate wellness programs inclusive of employees that have overcome a chronic condition, lost significant amounts of weight, and reduced serious health risk factors. These programs aren't just saving money for businesses - they're improving lives. Wellness initiatives inspire and motivate employees to change their behavior and provide them the tools to better themselves.

The business case for wellness should be clear: lower costs, higher engagement, productive employees, and a healthier business. With these diverse positive benefits and the current volatile climate of health care, your organization truly can't afford to not invest in employees' wellness.

6 Ways to Help Employees Get Along

Share on LinkedIn Share on Facebook Share on Twitter Share on Google Plus Share this Page

6 Ways to Help Employees Get Along

Sometimes employees don't get along and these conflicts and office disagreements can dampen productivity, waste time, reduce a team's performance, make the work environment tense and uncomfortable, and increase stress in work groups - none of which are beneficial to your business. Here are a few ways managers can help reduce conflict on their teams.

1. Set the tone

Managers and leaders set the tone for team interactions by what they say or do when conflict or problems emerge between their employees, how they manage conflict with their own peers, and what behavior they tolerate. If managers act passive-aggressive, disrespect fellow employees, or do not directly deal with conflict, employees will follow their lead.

2. Hire team-players

Hiring employees who have strong interpersonal, team-building, and internal customer service skills can decrease the likelihood of conflicts. While it's tough to predict how well a candidate will interact with your team, a solid personality or style assessment and behavioral interview as well as asking for references can help.  

3. Don't ignore conflicts

Managers have a tendency to ignore problems with poor team-players or team conflicts until they escalate. Instead they should encourage employees to collaborate on a solution and seek coaching and/or training for current employees who argue with coworkers, don't provide good internal service, or are overly critical or judgmental of others. It's critical to not let conflict spiral out of control.

4. Educate on styles and generational differences

Great teams are melting pots of different generations and backgrounds. Each employee brings a different personality and style to the table. Most conflict stems from not fully appreciating who another person is, their background, and the strengths of their individual style. Spend time educating your team on style and generational differences.

5. Spend time interacting

Developing common ground is one of the most important ways to fend off conflict in the workplace and it's achieved in the simplest of ways: spending more time with one another. Informally interacting and talking is one of the best ways to get employees familiar with one another. When they eventually find common ground, magic happens.

6. Reward teamwork

Most managers want teamwork, but reward individual achievement. Recognizing and rewarding teamwork, collaboration, and supportive interactions and promoting or giving choice assignments to employees who act like team players helps promote and encourage a supportive work environment.

When conflict strikes in the workplace, your managers are the best people to nip it in the bud, deal with it, and prevent it.

Conflict Resolution & Mediation Training

Conflict Resolution & Mediation Training

The course demonstrates how constructive conflict resolution techniques can be useful.

Train Your Employees