 On July 22, 2010, President Obama signed a new law extending emergency unemployment benefits to an estmated 2.5 million people until November 30th.
Voting on the law was split along party lines with most Democrats in favor and most Republicans opposed. Because approval of the law was delayed, benefits will be paid retroactively.
Rep. George Miller (D-Calif.) said of the law, "While nothing replaces a good paying job, providing basic support for families out of work through no fault of their own is the decent and right thing to do."
President Obama is encouraging Congress to turn their focus to passing a jobs bill to assist small businesses and boost job creation.
 The Department of Labor (DOL), IRS, and the Department of Health and Human Services (HHS) have issued final regulations regarding certain patient protections under health care reform rules. These regulations will be effective for plan years beginning on or after September 23, 2010. They cover group health plans and insurers. The new rules will not apply to grandfathered health plans; only new and non-grandfathered plans will be affected.
The patient protections relate to the choice of health care professionals and coverage of emergency services.
Regarding choice of health care professionals, plans that require a participant to designate a primary care provider from the network must allow any participating provider to be designated as a primary care provider. This also applies if plans require designation of a pediatrician. Plans that require designation of a primary care provider cannot require females to get authorization or referral for gynecological or obstetrical care provided by an in-network provider.
With respect to coverage of emergency services, plans that cover emergency services in a hospital emergency room cannot require prior authorization, even if services are out-of-network or provided by a non-participating provider.
Employers are required to provide notice regarding choice of health care professional no later than the first day of the first plan year beginning after September 23, 2010, and this notice must be provided whenever the plan issues a summary plan description or other similar description of benefits. The DOL has prepared a sample notice which can be found here.
 In February 2010, the number of employees voluntarily quitting surpassed the number being discharged for the first time since October 2008, according to the Bureau of Labor Statistics. In a poll conducted by HR consultant Right Management at the end of 2009, 60 percent of workers said they intend to leave their jobs when the market gets better.
For some companies, it may be too late to avoid the painful effects of a big turnover. A tech company recently posted an inquiry on its job board asking what could persuade the employees to stay in their jobs if they found another opportunity. More than 57 percent of the 1,273 surveyed said nothing could persuade them to stay. These findings point to the need for companies to learn ways to reengage and rebuild trust within the workforce.
Employers can no longer count on employees to stay in their jobs because of a bad economy. The problems imposed upon remaining employees over the last couple of years—increased workloads and job insecurity—have not fostered a contented workforce. The cost and efforts required for reengaging employees more than likely outweighs the impact of a large hiring and training initiative should the turnover rate predicted actually come to pass.
 The Lilly Ledbetter Fair Pay Act of 2009 amends or modifies Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act “to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice … .” In short, the Act re-starts the 180-day statute of limitations for filing certain types of civil rights claims whenever compensation is paid. However, employers, employees, lawyers and courts are left wondering what “or other practice” means.
Many employees have brought claims alleging that a failure to promote because of alleged illegal discrimination is a “practice” under the Act, and that therefore, the 180-day restriction does not apply to their case. Typically, the complaints allege that the complaining party was discriminated against in a promotion decision, and as a result, their compensation suffered and continues to suffer.
A growing body of cases is interpreting the Act to find that a failure to promote is not an “other practice” within the meaning and intent of the Lilly Ledbetter Fair Pay Act. These cases are holding that to establish a viable compensation claim under the Act, plaintiffs must show that their employer was paying different wages or providing different benefits to similarly situated employees. A discriminatory compensation decision or other practice does not include “promoting one employee but not another to a more remunerative position.”
Employers have yet to see the full extent of the impact of the ambiguous language of the Ledbetter legislation, but they can start to breathe more easily as the decisions of the courts give some guidance on how the Act will be applied. If you have any questions about a potential discriminatory pay issue that may be impacted by the Lilly Ledbetter Fair Pay Act, please contact an attorney in MSEC's Employment Law Services department.
 Before bringing a lawsuit alleging a violation of a federal anti-discrimination act (such as Title VII or ADEA), a charging party must first file with the state or federal agency tasked with investigating allegations of discrimination or harassment. In Colorado, the state agency is the Colorado Civil Rights Division (CCRD), while the federal agency is the Equal Employment Opportunity Commission (EEOC).
The two agencies maintain a work-share agreement that allows each agency to receive, draft and investigate charges of discrimination for the other. At the conclusion of an investigation, one of the agencies typically issues a notice of the charging party’s right to sue, which informs the charging party that he or she must file a lawsuit within 90 days of certain agency action. If the charging party does not file a lawsuit within the required time, the matter is generally considered closed.
In Rodriguez v. Wet Ink (10th Cir. 2010), the plaintiff filed a complaint with both the CCRD and the EEOC alleging discrimination and retaliation under federal law. The CCRD concluded that some of the allegations had merit while others did not, and the case was referred to mediation. After mediation failed, Ms. Rodriguez requested her notice of right to sue. The CCRD promptly issued her notice, but the EEOC delayed its issuance for another two months. Ms. Rodriguez filed her claim in federal court more than 90 days after the CCRD issued its notice but fewer than 90 days after the EEOC issued its notice. The federal District Court for the District of Colorado dismissed the suit as untimely, using the initial CCRD notice as the triggering date. Ms. Rodriguez appealed.
The 10th Circuit Court of Appeals reversed, concluding that CCRD’s notice did not trigger the 90-day period for filing a lawsuit pursuant to Title VII, which is under the EEOC’s jurisdiction.
If you are defending against a complaint before the CCRD and the EEOC, the matter is not resolved at the agency level until each agency issues its own notice. Although the EEOC gives “substantial deference” to the conclusions reached by the CCRD, the federal deadline will not trigger until the EEOC has issued its own notice. Be Patient. Keep the files open until 90 days after the EEOC has issued its own decision.
 The growing popularity of executive coaching (also often referred to as leadership, management, or life coaching) has led to important advances in research regarding the impact of coaching and Return On Investment (ROI). Companies are evaluating the results of their coaching initiatives and are compiling data that clearly point to the advantages of working with a coach in today’s competitive and rapidly changing economy.
A 2009 study of Fortune 100 executives by Manchester Consulting Group found that coaching resulted in an ROI of almost six times the cost of coaching as well as a 77 percent improvement in relationships, 67 percent improvement in teamwork, 61 percent improvement in job satisfaction, and a 48 percent improvement in work quality. Further, a study by MetrixGlobal of a Fortune 500 telecommunications company found that executive coaching resulted in a 529 percent ROI. Metropolitan Life Insurance Company found that productivity among salespeople who had participated in an intensive coaching program rose by an average of 35 percent.
Those who engage in a coaching relationship often enjoy enhanced thinking and decision-making skills, interpersonal effectiveness, and increased confidence in carrying out their chosen work. A number of organizations experience fresh perspectives, while individuals gain an understanding of personal challenges and various growth opportunities. People who have undergone coaching tend to demonstrate noticeable and appreciable results in the areas of productivity, satisfaction with life and work, and the achievement of personally relevant goals.
Coaching can work in several ways. In one approach, the team or individual being coached chooses the focus of the conversation, while the coach listens and contributes through observations and deep and poignant inquiries. This process often results in new insights on realistic changes in mindset and behavior. The coaching process/experience assists in generating possibilities and identifying actions in order for the client and the organization to realize desired change and personal/professional goals.
“After speaking with managers and directors who have gone through MSEC's executive leadership program, and receiving coaching myself in the program, I am not surprised to hear that the return on investment is high,” says Lorrie Ray, MSEC Director of Membership Development. “Coaching allowed me and other participants to focus on issues that were of unique help to each of us."
 Maricopa County Superior Court put the brakes on Proposition 108, a proposed amendment to Arizona’s state constitution which would have guaranteed the right to secret ballot elections in both private sector union representation and public office elections. The amendment was scheduled to go before the voters in the November general election.
Judge Robert H. Oberbillig found that the proposed amendment violated the state constitution’s requirement that the subject matter of a proposed amendment to the constitution be both “topically related” and “sufficiently interrelated.”
“In summary, because [the proposed amendment] combines two separate substantive topics into one amendment to the Arizona Constitution, [it] is unconstitutional pursuant to the Arizona Constitution’s separate amendment provision,” Judge Oberbillig said.
Proposition 108, also known as the “Save Our Secret Ballot” amendment, was apparently drafted as an attempt to foil the federal Employee Free Choice Act—also known as “card check”—which is currently under consideration by Congress. If card check passes, it will eliminate an employee’s ability to choose or reject union representation through a secret ballot election.
However, “it is unlikely that the Employee Free Choice Act or any of the suggested compromise legislation will pass,” according to MSEC Labor Relations attorney Andrew Joppa. “It is more likely that federal labor law changes will be generated through rulemaking and the issuance of decisions by the newly constituted National Labor Relations Board.”
 In what constitutes a major change in I-9 completion procedures, the federal government indicated recently that employers have four business days—not three—to complete section two of the I-9 form.
Employers must verify the work authorization of employees by completing an I-9 form for every new employee hired after November 6, 1986. Section one of the form must be completed by the employee before the end of the first day of work. Traditionally, employers have understood that they have until the end of the third business day to complete section two of the I-9. So, for an employee who begins work on Monday, an employer would finish the I-9 process by the end of Wednesday. This has been the well-settled timeframe for I-9 completion—until now.
United States Citizenship and Immigration Services now says that the first day the employee works is not included in the three-business-day calculation. Thus, for an employee who starts work on Monday, the employer has until the end of the day on Thursday to finish the I-9 process. Section one of the I-9 still must be completed by the end of the employee’s first day of work.
This development is significant because an employer who terminates an employee for inability to prove work authorization without providing the full time period to do so could be susceptible to a discrimination charge. The Office of Special Counsel, the agency that enforces the anti-discrimination provisions of federal law, has yet to weigh in on the issue.
“This is an evolving issue,” notes MSEC Manager of Immigration Services Ryan Adair. “Please stay tuned for further information.” Adair advises employers not to change their I-9 procedures until the Office of Special Counsel issues guidance.
Mountain States Employers Council has introduced HealthSource Colorado, a plan that will allow Colorado MSEC members who employ between one and 300 workers to enjoy insurance premium discounts for offering wellness programs to their employees.
HealthSource Colorado is one of the first offerings to take advantage of a new law which became effective on July 1. Formerly HB 10-1160, the new law recognizes the importance of allowing insurance carriers to reward employees for participating in programs designed to improve their health. MSEC has partnered with UnitedHealthcare to provide this product exclusively to MSEC members.
The federal Health Insurance Portability and Accountability Act (HIPAA) allows employers to reward employees based on outcomes as long as the program meets HIPAA guidelines. Although employers with fewer than 50 employees could take advantage of this, the insurance carriers could no longer reward the employer through lower premiums. HealthSource Colorado leverages this new statute to allow employers to be rewarded for their employees’ engagement in wellness activities.
The voluntary program provides employees access to a website created by the Mayo Clinic which can assess employees’ health and make recommendations for beneficial lifestyle changes. Employee participation triggers insurance discounts, which employers may then pass on to employees in various forms.
“The number of small businesses in Colorado that provide health-insurance benefits has dropped by as much as 10 percent in the past couple of years because of the economic downturn. MSEC is hoping this product will allow more small businesses to afford health insurance and counteract the current trend,” says Kelly Esselman, Manager of MSEC HR Professional Staffing Services. “We all know the scenario of the employee who comes into your office and closes the door,” says MSEC HR consultant Chris Oldham, who believes that employees tend to look to their employers’ Human Resources Departments for their ‘human resources,’ whether or not they’re work-related.
According to Oldham, as the people-focused department of the organization, Human Resources very likely has the longest and the closest relationship to the employee. Many employees see HR as their advocate and may feel safe coming to HR to talk about personal issues. Consequently, it helps to have knowledge of community resources close at hand.
If organizations do not have an Employee Assistance Program to refer employees or need phone numbers and/or addresses, Oldham recommends developing a contact list of the following:
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Medical clinics that accept walk-in patients
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Suicide prevention hotline or mental illness facility
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Domestic Violence Centers and hotline number
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Tough Love support groups
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Bereavement groups
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Senior Resource Centers
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Alcoholics Anonymous/Narcotics Anonymous groups
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Divorce Recovery Groups
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Financial Aid resources
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Red Cross and food banks
A possible next step is to have a representative from an agency or someone in your organization collect the contact information to these resources and distribute them to managers, says Oldham. “With tough times in many of our employee’s lives, maybe this is one way to be prepared and for everyone to be a ‘human resource.’” |
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ABOUT HOT TOPICS
MSEC's Hot Topics Blog is intended to provide our members with updates and expert assistance in governmental regulations, employee relations, employment law, and management development that leverages top trends in training. We have been helping organizations reach their strategic goals as we strive to accomplish our vision...effective, successful employers.
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