MBA News - Claims

Your Employee’s Work email expectation of privacy – New Supreme Court Decision adds some clarity.

MBAHRO — Mon, 28 Jun 2010 19:35:00 GMT

Your Employee’s Work email expectation of privacy – New Supreme Court Decision adds some clarity.

The latest Supreme Court ruling help that a California police department’s review of sexually charged text messages sent by the officer to his wife and to his mistress from his employer-issued pager, did not constitute an invasion of the employee’s privacy. This overturned a previous ruling by the 9^th Circuit. (Link to the full opinion in City of Ontario v. Quon).

As a business owner, you should take note that the Supreme Court’s decision was largely motivated by concept that the police department’s review of the messages was in line with its policy and was conducted for a valid business reason. Also, that the implications of the decision on the employees texts in this case could also be seen to apply to the work email expectation of privacy for the average employee.

The officer had exceeded the allotted monthly number of messaged approved for his text pager and, according with policy, the texts were then reviewed by his employer to determine the amount the officer would need to pay for non-work-related messages.

This court decision is the first in the area of an employer’s right to monitor the electronic communications of its employees sent and received during working time or with devices issued as part of the job.

As a business owner, it’s important to understand that:

The decision does not take away the right to privacy in all cases.
You should consider having a written policy for communication review policies and procedures for your company to avoid getting out of sync with your employees work email expectation of privacy (or texts, or phone calls).
Any search of employee communications should not go beyond what is necessary to achieve a legitimate business purpose. In this case, reviewing the records to determine the personal overuse of the texts.

Modern Business Associates frequently deals with privacy issues. As a Professional Payroll and HR outsource organization, our clients rely on us to help them effectively deal with these kinds of topics.

DOL says you may have to compensate employees for time spent putting on protective equipment required by law.

MBAHRO — Tue, 15 Jun 2010 19:54:00 GMT

DOL says you may have to compensate employees for time spent putting on protective equipment required by law.

The new Department of Labor’s (DOL) Administrator’s Interpretation, issued by Deputy Administrator Nancy J. Leppink), concerns whether you have to pay for the time employees use to change put on and take off protective equipment required by law. It’s entitles “SUBJECT: Section 3(o) of the Fair Labor Standards Act, 29 U.S.C. 203(o), and the definition of clothes.” (Administrator's Interpretation No. 2010-2)

Under the Fair Labor and Standards Act, you don’t have to pay employees for their time spend changing clothes or washing at the beginning or end of each workday. But, this new Administrator’s Interpretation explains that safety equipment is going to be treated separately, and that changing into and out of protective equipment required by law is now time that your employees will be compensated for.

So, if your employees are just putting on uniforms, then it’s probably not time that you need to pay them for. On the other hand, if they are putting on protective equipment to abide by safety laws, then it would be “on the clock” time.

These DOL has previously stated the opposite opinion regarding whether you have to pay for this time. So, read the new brief and consult your legal resources to see how it may apply to your business.

Modern Business Associates frequently deals with compliance issues. As a Professional Payroll and HR outsource organization, our clients rely on us to help them effectively deal with these kinds of topics.

Restaurant Employee Benefit Service Tips For the Small Restaurant

MBAHRO — Mon, 17 May 2010 18:09:00 GMT

Restaurant Employee Benefit Service Tips For the Small Restaurant

Small restaurant owners often find it difficult to compete for talent with larger restaurants regarding employee benefits. In an industry where 100-precent yearly turnover is the norm, most independent restaurants do not offer extensive benefits packages. By outsourcing your payroll and HR responsibilities to a professional employer organization (PEO), a small restaurant can level the playing field, and offer its employees the same benefits as a chain.

Frequently, things as small as direct deposit and a small benefit plans for dental and vision contribute to increased employee retention. Many restaurants see a change by letting an employee benefits service focus on these things for them.

Lower Premiums

The economies of scale provided by PEOs are helpful when procuring and administering health insurance benefits. By pulling all of its clients’ insurance premiums together and aggregating all of its worksite employees, a PEO can contract with providers all over the country and keep annual premium increases lower than average yearly double digit increases currently being experienced.

Better Benefits for Your Staff

Forty percent of businesses that use PEOs upgrade their benefit packages with supplemental health-care choices, including vision and dental care, employee assistance programs and even adoption assistance.

This was the case with Howl at the Moon franchisor, Lee Jerousek, who switched from employing a full time HR manager to PEO, Modern Business Associates, two years ago.

Better communications with staff

Employee benefit services are professional communication experts in being able to help bring new employees onboard. They also help with your communications plan to keep all the employees up-to-speed with the benefits offerings, to help retain them.

Avoiding Employee Claims

Many restaurants have predominately young males and females working together late into the night. This environment tends to create problems in the form of sexual harassment and a hostile work environment. A PEO is uniquely suited to train and develop managers, as well as institute proactive procedures for dealing with problems as they occur.

Modern Business Associates frequently deals with employee benefit services. As a Professional Payroll and HR outsource organization, our clients rely on us to help them effectively deal with these kinds of topics.

Employee Benefits Cost Advantages to Restaurants that outsource HR

MBAHRO — Wed, 12 May 2010 18:14:00 GMT

Employee Benefits Cost Advantages to Restaurants that outsource HR

When a restaurant considers outsourcing its HR functions, it normally takes into account some estimated employee benefits cost advantages. But many of the advantages go beyond having your employees take advantage of group benefits rates through the PEO company.

By using an outsource, restaurant owners can relieve themselves of the costly administrative burdens of managing:

Claims management
Direct Deposits
Payroll Taxes
Applying the complex laws governing wages and tips that can make managing restaurant payrolls extremely difficult to manage.

A PEO can help reduce the employee benefits cost and the risk of compliance penalties through:

Arranging for competitive health coverage.
Creating a I-9 compliance evaluation, which ensures that all employees are compliant with INS regulations and avoiding penalties.
Performing a payroll process audit to make recommendations to stay in compliance with Fair Labor Standards Act regulations.

In a recent survey, the National Association of Professional Employer Organizations (NAPEO) found that a small business owner will spend 10 percent more time complying with workplace regulations than they did ten years ago.

Employee benefits cost reduction when firing or laying off staff.

PEOs can help restaurants make informed choices when planning to offer benefits to workers that will be fired or be a part of a layoff. Whether a company has an overworked HR staff in-house or no HR at all, a PEO allows restaurant owners to spend more time focusing on managing their restaurant.

Modern Business Associates frequently deals with employee benefits costs. As a Professional Payroll and HR outsource organization, our clients rely on us to help them effectively deal with these kinds of topics.

Slip and Fall Workmans Comp – Tips for Risk Management for Restaurant Business Owners

MBAHRO — Mon, 10 May 2010 17:11:00 GMT

Slip and Fall Workmans Comp – Tips for Risk Management for Restaurant Business Owners

Slip and Fall Workmans comp insurance covers the slips and falls, as well as occasional accidents, but accounts for one the fastest growing labor costs. Premiums for workmans comp have risen 50 percent nationwide in the last three years - the fastest pace in a decade, according to the New York City-based Insurance Information Institute.

Due to food handling and preparation, restaurants have to comply with more regulations and compliance issues than ninety percent of the general business population.

Today workplace health and safety is more crucial than ever before to a small business’s long-term success. Dealing with the unexpected, the Swine Flu scare, along with constant recession-driven layoffs, is driving the cost of workers’ compensation premiums.

Workmans Comp accidents cost money such as direct costs:

Medical expenses
Compensation expenses

There are indirect costs as well. If lost, these items can easily cost you many times the direct costs.

Loss of Production
Loss of Time
Lowering of Employee morale
Drops in Customer Service

One option to deal with these risks is to partner with an HR outsource, like a Professional Employer Organization (PEO). A PEO routinely implements risk management processes to keep expenses down. For more than two decades, workmans comp (including slip and fall) risk management has been a central component of the total human resources solution PEOs have been providing. They routinely review and document the claims experience to understand the frequency and severity of claims. Results of these reviews help you avoid excessive costs and employee claims.

Modern Business Associates frequently deals with Slip and Fall Workmans Comp. As a Professional Payroll and HR outsource organization, our clients rely on us to help them effectively deal with these kinds of topics.

Are your discrimination claims going up? You need a HR outsource. Here’s why.

MBAHRO — Thu, 18 Mar 2010 22:50:00 GMT

Are your discrimination claims going up? You need a HR partner. Here’s why.

USA Today recently ran an informative article, based on recently release EEOC data, on why your discrimination claims are going up. Understanding the effects of recent market and discrimination law changes will help you better prepare for what’s ahead for you.

Contributing Factors to more claims:

Changes to the Americans with Disabilities Act last year made it easier for people with treatable conditions to say they are disabled (epilepsy, diabetes, etc.) Legislation signed into law by President George W. Bush before he left office directs courts to apply the definition of disability more generously.
We have a more diverse workplace with people from all over the world and made up of many races.
The economic environment seems to be contributing to employees being more aware of their rights.
Changes at the EEOC filing processes (and EEOC website) have been made it easier for an employees to learn about their rights and to file discrimination charges.

In part because of these changes last year…

There was a record number of job discrimination claims based on disability, religion or national origin last year. 93,000 discrimination claims were filed during the 2009 fiscal year, a 2% decrease from the record set in 2008, but still the second-highest level in the commission's history.
Charges of discrimination based on national origin rose about 5% to 11,134 claims
Allegations of race discrimination remained the most frequently filed complaint, accounting for about 36% of all filings last year.
Religious discrimination claims rose less than 1%, to 3,386 claims.
The largest increase in any category was a rise of about 10% to 21,451 claims, for disability discrimination.

It is a lengthy and tedious process for companies to actively deal with EEOC compliance paperwork, and many details can often be overlooked until it is too late. To help businesses keep up with their paperwork and discrimination law, there are a growing number of professional employee companies that manage these kinds of HR and EEOC issues for their clients.

Modern Business Associates deals with these kinds of issues on a frequent basis. As a Professional Employee Organization, our clients rely on us to help them effectively deal with these kinds of issues.

Why national unemployment levels mean legal hassles for you.

MBAHRO — Sat, 13 Mar 2010 22:56:00 GMT

Why national unemployment levels mean legal hassles for you.

As a business owner, you should understand that a significant level of unemployment is the largest predictor of an increase in employee lawsuits relative.

Understandably, employers face difficult questions and concerns during a weakened economy

What is the process for an employee’s layoff?
Which employment laws are relevant?
How can I avoid an employee lawsuit?
How do I combat lowered employee morale?

A downsizing employer is expected to navigate a complex legal and human resources minefield, and must get its answers right the first time. Employers will increasingly seek legal guidance to minimize risk when answering these critical questions and dealing with laws.

You may need compliance assistance (or a shoulder to cry on) during an isolated layoff,
You should develop a strategic reduction-in-force plan while consulting your legal resources. In this way, you can avoid looming legal hassles that are characteristics of high levels of unemployment.

Modern Business Associates frequently deals with layoff issues. As a Professional Employee Organization, our clients rely on us to help them effectively deal with these kinds of topics including designing layoff plans and educating clients about lowering the chance of an employee claim.

What does PEO stand for?

MBAHRO — Fri, 12 Mar 2010 22:57:00 GMT

What does PEO stand for? What is a PEO?

If you’re asking yourself, “What does PEO stand for?”, then you should know that, professional employer organizations (PEOs) are in the business of being an outsource for companies that want to focus on their core business model. PEOs provide the ability to outsource:

Human Resources
Employee Benefits
Payroll
Workers’ Compensation

Many businesses today see the value in outsourcing the parts of their business that don’t focus on their expertise at revenue-producing and operational efforts.

A few benefits of using a PEO are:

Lower payroll processing costs with higher reliability concerning documentation and regulatory requirements
Using their HR legal resources to lower their risk of employee lawsuits
Professionally dealing with compensation and unemployment insurance claims.
Improved employment practices, compliance and risk management to reduce liabilities.
Access to a comprehensive employee benefits package, allowing clients to be competitive in the labor market.

“What does PEO Stand For?” – Let Modern Business Associates help you through the process of understanding how a Professional Employer Organization can help your bottom-line this year. As a PEO, Modern Business Associates provides a wide range of personnel management solutions through our team of HR and payroll professionals. Contact us about your PEO questions today.

Having an employee sign a separation agreement doesn’t cover you completely.

MBAHRO — Thu, 11 Mar 2010 23:02:00 GMT

Having an employee sign a separation agreement doesn’t cover you completely.

If you offer a severance, a separation agreement and general release is essential to secure the release of employment-related claims.

Keep in mind that not all claims can be released by an employee, Including:

Wage and hour claims
Certain workers' compensation-related claims
Family and Medical Leave Act (FMLA) claims (courts are split over this issue).

Additionally, an employer cannot bar an employee from filing a charge of discrimination (although it can prevent an employee from obtaining related monetary relief thereunder). Because of varying local/state employment laws, employers should be encouraged to seek outside counsel for separation agreement drafting and review.

A separation agreement should be clearly written and must comply with local, state, and federal law. Important factors must be considered when negotiating severance and drafting a separation agreement.

Modern Business Associates frequently deals with legal HR issues. As a Professional Employee Organization, our clients rely on us to help them effectively deal with these kinds of topics including designing legal processes for terminations and designing a separation agreement.

Employee discipline documentation is your friend when preparing for a lay off.

MBAHRO — Mon, 08 Mar 2010 23:04:00 GMT

Employee discipline documentation is your friend when preparing for a layoff.

Documentation of employee discipline is critical when building a list of potential candidates for a lay off. Employee discipline documentation is one of the most important aspect to adding credibility to recommending an “inflexible” or “weak link” employee for a layoff list.

However, it is too often the case that management cannot support its rationale with documented employee discipline. In those instances, the employer's decision about who to include in the lay off can be used by former employees to bolster discrimination allegations. Document your poor performers before considering a layoff.

Fighting costly legal battles can quickly offset savings achieved during a layoff. A June 2008 Supreme Court decision has made lay offs even riskier for employers. In Meacham et al. v. Knolls Atomic Power Laboratory, the court determined that an employer must bear the burden of proving the "reasonableness" of factors other than age when a RIF has an adverse impact on workers age 40 and older. Employers who are unversed in the legal pitfalls of a lay off often seek to eliminate their "weakest links," citing non-specific, undocumented and legally weak issues, like "performance" or "lack of flexibility" (two criteria used by the employer in Meacham) as the reasons employees were selected for a layoff.

Modern Business Associates frequently deals with lay off issues. As a HR outsource company, our clients rely on us to help them effectively deal with these kinds of topics including designing plans for lay offs and documenting employee discipline.

Benefits of Performance Appraisals include Compliance Protection

MBAHRO — Fri, 05 Mar 2010 23:06:00 GMT

Benefits of Performance Appraisals include Compliance Protection

A performance appraisal system, when properly managed, provides you with a means of measuring, maintaining, and improving your employee’s job performances. Through the job performance appraisal program, your company can:

Validate hiring decisions
Recognize employees' job performance strengths and weaknesses
Identify employees who are ready for promotion or greater responsibilities
Assess training needs

From a compliance perspective, you should be able to rely on performance appraisals to justify the full range of personnel decisions, including discipline and termination actions.

For example, if a performance appraisal reflects poor job performance by the employee and this employee is later terminated, the you can point to the performance appraisal to show the employee was not performing to standards. If, however, an employee with overall weak performance is given a good or even average appraisal, and the employee is later terminated without interim discipline, the performance appraisal will have the opposite result — the employee may use it to show the termination decision was not justified and instead, was based on a discriminatory or other unlawful factor.

A well designed and administered performance appraisal program can go far to protect employers from certain legal challenges to employment decisions.

Modern Business Associates frequently deals with performance appraisals. As a HR outsource organ, our clients rely on us to help them effectively deal with these kinds of topics including compliance protection.

How to avoid age discrimination issues during layoffs.

MBAHRO — Thu, 04 Mar 2010 23:07:00 GMT

How to avoid age discrimination issues during layoffs.

There are a variety of reasons for an employer to offer severance to an employee who is separating from employment (e.g., to settle threatened or actual litigation, as a goodwill gesture in the event of a layoff), but in virtually all situations, the employer is going to insist that the employee sign a release as a condition to receiving the settlement payment.

This article outlines some of the most important issues, specific to age discrimination, employers should consider when drafting such waivers. In all circumstances, it is advisable that outside counsel review all agreements.

The Age Discrimination in Employment Act (ADEA) has a list of requirements that must be incorporated into your release. They focus on making sure the departing employee does not waive any right or claim under ADEA unless the waiver is “knowing and voluntary”. This means the release must:

Be "written in a manner calculated to be understood" by the employee; and
Specifically refer to the employee's rights or claims under the Age Discrimination in Employment Act; and
Only waive rights or claims that arose prior to the date the waiver was signed; and
Provide consideration; and
Advise the employee to consult an attorney prior to executing the release; and
Allow the employee at least 21 days to consider whether she will sign the agreement; and
Allow the employee at least seven days to revoke the agreement.

Keep in mind, a release under the Age Discrimination in Employment Act may not preclude an employee from filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or participating in an EEOC investigation.

A release agreement can serve useful business purposes, including, but not only, litigation prevention and avoidance. To achieve its objective, however, the waiver must be carefully drafted to ensure that if challenged, it will be enforced.

Get help assessing your worker’s compensation claim history so you don’t ruin your bottom-line this year. Here’s how.

MBAHRO — Wed, 10 Feb 2010 17:05:00 GMT

Get help assessing your worker’s compensation claim history so you don’t ruin your bottom-line this year. Here’s how.

As a large business executive, you may be considering the use of a PEO to help mitigate your workers’ compensation risk exposure. In today’s market, large companies are requesting assistance from their PEOs to determine their worker’s compensation loss potential and whether self-funded types of insurance programs are right for them. Savvy Professional Employer Organizations have developed specialized services that cater to this topic, specifically to large businesses.

Your company may be utilizing a self-funded, or partially self-funded, workers’ compensation insurance program in an attempt to secure cost savings. These programs provide large clients with a cost saving alternative to traditional insurance.

This means you are retaining a portion of the risk of loss from claims expenses rather than transferring the risk to the insurance company.

With the wrong circumstance, your potential for loss could be great. Therefore, it is absolutely critical that you assess your claims history to determine if these programs are appropriate for its business.

Will your PEO handle these needs? Ask, before committing to one.

MBA has a team of professionals and on-staff HR Managers for compensation issue handling. Call us today to speak with an account representative to discuss your needs and to hear about how we’ve helped other clients with similar issues. Compensation insurance claims are a part of doing business and being equipped to handle them can give peace of mind.

Benefits of Performance Appraisals include Compliance Protection

MBAHRO — Wed, 13 Jan 2010 16:18:00 GMT

Benefits of Performance Appraisals include Compliance Protection

Validate hiring decisions
Recognize employees' job performance strengths and weaknesses
Identify employees who are ready for promotion or greater responsibilities
Assess training needs

From a compliance perspective, you should be able to rely on performance appraisals to justify the full range of personnel decisions, including discipline and termination actions.

A well designed and administered performance appraisal program can go far to protect employers from certain legal challenges to employment decisions.