Workplace rules are back, baby!

Peter Robb, General Counsel for the National Labor Relations Board (and my new hero), issued a memorandum on Wednesday that employers should love. Mr. Robb has declared that nine standard employer policies will now be presumed lawful under the National Labor Relations Act.

The memorandum was based on the Board’s decision in The Boeing Company, issued in December 2017. Before Boeingthe NLRB under the Obama Administration had taken the position that these policies were unlawful because they could have a “chilling effect” on employees’ exercise of their rights to engage in “protected concerted activity” under Section 7 of the NLRA.

So, without further ado, here are nine standard employment policies that the Board says are legal again, absent evidence that they’re being applied to protected concerted activity. (Welcome back!) I’ll also go over workplace rules that continue to violate the NLRA, and workplace rules that will be evaluated on a case-by-case basis.

Workplace rules that are presumed lawful

No. 1: Civility rules. The Equal Employment Opportunity Commission must be happy about this one because their proposed guidance on workplace harassment recommended civility training for employees as a harassment-prevention measure. The EEOC had to include a footnote that its recommendation could be problematic from an NLRA standpoint. (I’d been recommending to clients that they restrict civility training to management until this conflict between the EEOC and the NLRB was resolved.)

Conflict hereby resolved! According to the General Counsel, an expectation of civility does not interfere with employees’ right to engage in protected concerted activity because they can almost always criticize the employer, or individual supervisors, in a civil manner.

No. 2: No photography, no recording. Although there are occasions when employees may want to photograph or record working conditions or labor protests, the General Counsel says, for the most part rules prohibiting unauthorized recordings have no impact on Section 7 rights and therefore are lawful. However, “a ban on mere possession of cell phones at work may be unlawful where the employees’ main method of communication during the work day is by cell phone.” In other words, the ban should be on unauthorized recording, not on possession of a device that can record.

No. 3: Bans on insubordination, non-cooperation, adversely affecting operations. “An employer has a legitimate and substantial interest in preventing insubordination or non-cooperation at work. Furthermore, during working time an employer has every right to expect employees to perform their work and follow directives.”

Duh. It’s sad that this even had to be said, but thank you, General Counsel Robb, for saying it.

(Of course, if the “insubordination” is engaging in protected concerted activity, then the application of the rule would violate the NLRA.)

No. 4: Bans on disruptive behavior. Employers again have the right to prohibit “fighting, roughhousing, horseplay, tomfoolery, and other shenanigans.” Also, “yelling, profanity, hostile or angry tones, throwing things, slamming doors, waving arms or fists, verbal abuse, destruction of property, threats, or outright violence.”

There may, however, be instances when some of this activity is associated with a strike or walkout and may be protected. And you can’t ban strikes or walkouts.

No. 5: Protecting confidential and proprietary information, and customer information. Yes, employers, it is again legal for you to prohibit employees from disclosing your confidential and proprietary information. “In addition, employees do not have a right under the Act to disclose employee information obtained from unauthorized access/use of confidential records, or to remove records from the employer’s premises.” (Emphasis added.) To be lawful under the new standard, the employer should ban the unauthorized access or disclosure of confidential employee information rather than flatly banning disclosure of any employee information.

No. 6: Bans on defamation or misrepresentation. According to the General Counsel, because “defamatory” statements or “misrepresentations” imply some level of deliberate falsehood or misleading, “Employees will generally understand that these types of rules do not apply to subjectively honest protected concerted speech.”

No. 7: Bans on unauthorized use of company logo or intellectual property. “Most activity covered by this [type of] rule is unprotected, including use of employer intellectual property for unprotected personal gain or using it to give the impression one’s activities are condoned by the employer,” the memorandum says. And I love this:

“Employers have a significant interest in protecting their intellectual property, including logos, trademarks, and service marks. Such property can be worth millions of dollars and be central to a company’s business model. Failure to police the use of such property can result in its loss, which can be a crippling blow to a company. Employers also have an interest in ensuring that employee social media posts and other publications do not appear to be official via the presence of the employer’s logo.”

No. 8: Requiring authorization to speak for the employer. Yet another “duh” moment: “Employers have a significant interest in ensuring that only authorized employees speak for the company.”

No. 9: Bans on disloyalty, nepotism, or self-enrichment. Even the Obama Board didn’t have much of a problem with employer rules that banned (or required disclosure of) conflicts of interest, or employees who had financial interests in competitors of the employer. The Trump Board agrees.

Workplace rules that are presumed unlawful

The memorandum lists two types of employer rules that will continue to be found unlawful, and I believe most employers are already aware of these:

  • Prohibiting employees from discussing or disclosing information about wages, benefits, or other conditions of employment.
  • Prohibiting employees from joining outside organizations or “voting on matters concerning” the employer. 

These rules are directly related to activity protected by Section 7 of the NLRA. Therefore, they are presumed unlawful, and NLRB Regional Offices are instructed to issue complaints “absent settlement.” (The Regional Offices do have the option of asking for advice from the Office of the General Counsel if they think special circumstances apply.)

Workplace rules that require case-by-case assessment

The memorandum also discusses some “gray area” rules, which may or may not violate the NLRA depending on the circumstances. The following types of rules will be submitted to the Office of the General Counsel and evaluated on a case-by-case basis:

  • “Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment . . . and do not restrict membership in, or voting for, a union.”
  • Broad or vague “employer confidentiality” rules that don’t focus on confidential and proprietary, or customer, information and that don’t specifically restrict Section 7 activity (discussion of wages, benefits, or other terms and conditions of employment).
  • Rules prohibiting disparagement of the employer, as opposed to disparagement of employees.
  • Rules restricting use of the employer’s name, rather than just its logo or trademarks.
  • Rules that prohibit employees from speaking to the media or third parties at all (as opposed to communications to third parties where the employee purports to represent the employer).
  • “Rules banning off-duty conduct that might harm the employer.” A little vague.
  • “Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements) . . ..”

For the past several years, employers have been struggling to comply with the Board’s interpretations while retaining the right to maintain some semblance of order in their workplaces. The General Counsel’s memorandum is a giant step in the right direction.

Article written by: Robin Shea, partner with leading national labor and employment law firm (and ThinkHR strategic employment law partner) Constangy, Brooks, Smith & Prophete, LLP

Originally posted on thinkhr.com

While there’s plenty of talk about work/life balance, many employees want to feel human while at work, too. Being able to bring their whole selves, according to “3 Ways to Create a More Human Workplace,” from Workforce, is an essential piece of a welcoming, inclusive workplace environment.

Putting employees first as a defined company value means helping team members feel connected, valued, and like their work is having an impact. Supporting employee well-being improves everything from engagement to loyalty.

Small changes, like building breaks into the day, as well as larger wellness initiatives are some of the best investments in resources, time, and money a company can make in both its people and its bottom line.

As companies think about the customer experience more and more, it’s also a smart idea to think about the employee experience. One-off opportunities or programs to check the wellness box, for example, are less powerful than a holistic experience. Employers should consider whether their employees would enthusiastically recommend a friend apply for a job, and craft a workplace experience that makes that a reality.

That whole person, whole experience approach also applies when building a diverse and inclusive workplace. Recruitment and hiring are often the talked about steps, but it’s as critical to think about the employee experience after the job starts.

Beyond the overall workplace environment, employers can strive to make the workplace a more inclusive space, according to “6 Steps for Building an Inclusive Workplace,” from the Society for Human Resource Management. After successfully hiring a diverse workforce, employers need to support and retain talented individuals.

It starts at the top, with education for leadership on topics ranging from inclusion to unconscious bias to training on how to best accommodate an employee with a disability. Creating a dedicated council or committee to act as intermediaries between executives and employees, clear employee goal setting, and regular reviews are just a few next steps.

Giving dedicated time, space, and opportunities (both organic and organized) to share about individuals’ background and opinions can help employees feel connected and seen in their workplace. Ensuring diversity is supported in both action and physical space—whether a meditation or prayer room or a space for nursing mothers—is essential. Likewise, celebrating culture and identity can also be a powerful connective tool.

Even the way day-to-day work happens showcases how inclusive a company is. Employers can learn what employees need and want by making time to listen part of the day. Rotating meeting times and checking on technology needs for remote workers are small choices a company can make to show it cares about its individuals.

And, ultimately, keeping inclusivity top-of-mind and visible for everyone helps foster a culture of expectations. Having leadership and management communicate goals and measure progress for an inclusive workplace ensures everyone knows inclusion is valued.

By Bill Olson, VP, Marketing & Communications at United Benefit Advisors
Originally posted on www.ubabenefits.com

The world is connected nowadays through our screens. Whether it be email, texting, websites, Facetime, or social media; we all use technology to connect us to others. According to Hubspot, an online marketing and sales software provider, consumers are on social networks more than ever before. They wrote:

In our survey of 1,091 global internet users, we’ve found people have dramatically increased content consumption on the three most popular social networks in the last two years: Facebook (+57% increase), Twitter (25% increase), and LinkedIn (21% increase). These networks have notably doubled down on content in the past few years to capture and retain the attention of their users — and it appears the playbook is working.The Future of Content Marketing: How People Are Changing the Way They Read, Interact, and Engage With Content

So, how do you harness this tech to strengthen your connectivity to your audience? Here’s the top 5 tips for using social media that every agency can benefit from using.

  1. Consistent Content Posting

Your followers want to know when they can expect new info to be posted on your website and social media. If you post once a week for 3 weeks and then not post again for another month, your audience will quit paying attention. Consistency is the key! Make a point to post at the same general time on the same days and you will see more interaction from your followers.

  1. Images & Videos

62% of users thoroughly consume the social media post if it includes video as compared to only 25% consumption of traditional long content posts. That’s a HUGE difference! Grab your audience’s attention when they are scrolling through their social media by posting pictures and videos. They are telling us that they will stop and watch or read more than skimming because of the images they see.

  1. Keep Up with Social Media Trends

Pay attention to what you are most engaged with on social media. Do you like to watch Facebook Live videos? Do you stop and scroll through pictures from companies when they post what they are doing in the community? Do you prefer to chat with a customer service representative online versus an email? If you are seeing your preferences change, there is a good chance your audience’s preferences are changing. Post pictures of your teams serving their community. Use videos to educate your clients on relevant issues in your field. Social media is constantly evolving so stay up on trends and use them on your pages!

  1. Facebook is Still King

Consumers are using Facebook for more than just connecting to their high school friends—they are using it to read content from their favorite businesses and groups. This means you MUST keep your Facebook page updated and have new content posted regularly. According to a new Hubspot survey, 48% of consumers use their Facebook feed to catch up on news, business, and lifestyle stories. This ties back to Tip #1 and reiterates that consistent posting is the sweet spot for engaging customers.

  1. Engage Your Audience

How are you talking to the people who use your business? Are you responding to inquiries on Facebook? When you post pictures on LinkedIn are you responding to the people who are looking and commenting on them? When you engage with your followers, they are more likely to have a stronger relationship with you. Entrepreneur Magazine says, “They are more likely to have a better evaluation of the brands, stay loyal to the brands and recommend the brands to others.”

By following these tips, your social media pages can grow into healthy sites and you can be more effective as you engage with your audience.  Start using them today!

Curious about when you should notify a participant about a change to their health care plan?

The answer is that it depends!

Notification must happen within one of three time frames: 60 days prior to the change, no later than 60 days after the change, or within 210 days after the end of the plan year.

For modifications to the summary plan description (SPD) that constitute a material reduction in covered services or benefits, notice is required within 60 days prior to or after the adoption of the material reduction in group health plan services or benefits. (For example, a decrease in employer contribution is a material reduction in covered services or benefits. So is a material modification in any plan terms affecting the content of the most recent summary of benefits and coverage (SBC).) While the rule here is flexible, the definite best practice is to give advance notice. For collective practical purposes, employees should be told prior to the first increased withholding.

However, if the change is part of open enrollment, and communicated during open enrollment, this is considered acceptable notice regardless of whether the SBC, SPD, or both are changing. Essentially, open enrollment is a safe harbor for all 60-day prior/60-day post notice requirements.

Finally, changes that do not affect the SBC and are not a material reduction in benefits must be communicated and summarized within 210 days after the end of the plan year.

By Danielle Capilla
Originally Published By United Benefit Advisors

A generation ago, unexpected loss of a loved one could be seen as an isolated situation. But today, a quick search of GoFundMe delivers a difficult reality check. Simply type “funerals” into the search field, and behold—799,182 results (on this particular day). Almost 800,000 tales of the sudden loss of a loved one, compounded by an acute financial crisis.

Scrolling through the many names and faces of tragedy can be tough. And yet it allows us to see the cost of putting off buying life insurance in a whole new way. The truth is, life can be breathtakingly uncertain, but the financial impact of a sudden, unexpected loss doesn’t have to be. With life insurance, you can know—without the shadow of a doubt—that if you or your spouse or partner died unexpectedly, your family would be financially secure. And you can know that for less than a $1 a day.

The Pros and Cons of Crowdsourcing
GoFundMe and other crowdfunding sites are fabulous for stretch goals, for helping people get back on their feet after a setback, and for inspirational charity projects. These modern tools let regular people pool needed capital easily and safely by collecting small donations from large numbers of people and sharing your story far and wide on social media.

“An uncertain amount of money, reduced by service fees and taxes, or a predetermined tax-free payment?”

But assuming you’ll rely on a crowdfunding site if tragedy befalls? Which would you prefer during a time of intense stress—a new technology that enables panicked fundraising by your grieving family, or a time-tested financial tool that delivers funds immediately to your beneficiaries in a cash lump sum to pay immediate expenses, such as the funeral and burial, and in addition, all the day-to-day bills and debts that will have to be paid as life continues on.

An uncertain amount of money, reduced by service fees and taxes, or a predetermined tax-free payment?

An online fundraising obligation for your grieving family to organize, or complete certainty that all costs are covered, allowing your loved ones to focus on other things?

Choose the Best Scenario for Your Family, Today
Which model would you choose for your family during a time of intense stress? As it turns out, the time to choose is actually now, when tragedy is the furthest thing from everyone’s minds.

You can choose to put a financial buffer in place today, so that your loved ones will never have to fend for themselves after an unexpected loss. And you can make this choice for less than the price of a daily coffee.

As a point of reference, if you’re a healthy 30-year-old who doesn’t smoke, you can get a 20-year, $250,000 level term life insurance policy for about $16 a month. As you age and your health changes, the premium to get a life insurance policy increases, so it makes sense to buy coverage—and lock in the low price—when you are young and healthy.

The truth is, crowdfunding only goes so far. Instead of hoping a crowdfunding site will be there if tragedy strikes someday, you can research coverage options for you and your family, right now.

A minimum of hassle today can ensure your loved ones will never have to shoulder the terrible double burden of both personal and financial loss—and that they’ll never have to set up the crowdfunding page no one ever wants to build.

By Erica Oh Nataren

Originally Published By LifeHappens.org

When evaluating employee benefits, essentials such as health and dental plans, vacation time and 401(k) contributions quickly come to mind. Another benefit employers should consider involves subsidizing learning as well as ambitions. Grants and reimbursements toward advanced degrees and continuing education can be a smart investment for both employers and employees.

Educational benefits are strongly linked to worker satisfaction. A survey by the Society for Human Resource Management revealed that nearly 80 percent of responding workers who rated their education benefits highly also rated their employers highly. While only 30 percent of those rating their higher education benefits as fair or poor conversely rated their employer highly.

These benefits are popular with businesses as well. In a survey by the International Foundation of Employee Benefit Plans, nearly five of six responding employers offer some form of educational benefit. Their top reasons are to retain current employees, maintain or raise employee satisfaction, keep skill levels current, attract new talent and boost innovation and productivity. Tax credits offer additional advantages. Qualifying programs offer employers tax credits up to $5,250 per employee, per year.

At the same time, companies should offer these benefits with care as they do pose potential pitfalls. Higher education assistance can be costly, even when not covering full costs. Workers taking advantage can become overwhelmed with the demands of after-hour studies, affecting job performance. Also, employers would be wise to ensure their employees don’t promptly leave and take their new skills elsewhere.

When well-planned, educational benefits will likely prove a good investment. Seventy-five percent of respondents to SHRM’s survey consider their educational-assistance programs successful. To boost your employee morale, skill levels and job-satisfaction scores, consider the benefit that may deliver them all, and more.

Find out more:
IFEBP: Why Educational Assistance Programs Work
EBRI: Fundamentals of Employee Benefit Programs

By Bill Olson, VP, Marketing & Communications at United Benefit Advisors
Originally posted on UBABenefits.com

Do you offer health coverage to your employees? Does your group health plan cover outpatient prescription drugs? If so, federal law requires you to complete an online disclosure form every year with information about your plan’s drug coverage. You have 60 days from the start of your health plan year to complete the form. For instance, for a calendar-year health plan, this year’s deadline is March 1, 2018.

Background

The Centers for Medicare and Medicaid Services (CMS) is a federal agency that collects data and administers various federal programs. The agency utilizes the CMS online tool to collect information from employers about whether their group health plan’s prescription drug coverage is creditable or noncreditable. Creditable coverage means the group health plan’s prescription drug coverage is actuarially equivalent to Medicare’s Part D drug plans. In other words, the group plan is considered creditable if its drug benefits are as good as or better than Medicare’s benefits.

To confirm whether your plan provides creditable or noncreditable coverage, check with the plan’s carrier or HMO (if insured) or the plan’s actuary (if self-funded). CMS provides guidance to help plan sponsors, carriers, and actuaries determine the plan’s status.

Deadline for Disclosure

All group health plans that include any outpatient prescription drug benefits, regardless of whether the plan is insured, self-funded, grandfathered, or nongrandfathered, must complete the CMS disclosure requirement. There is no exception for small employers.

Complete the CMS online disclosure form every year within 60 days of the start of the plan year. For instance, for calendar-year plans, this year’s deadline is March 1, 2018.

Additionally, if your plan terminates or its status changes between creditable and noncreditable coverage, you must disclose the updated information to CMS within 30 days of the change.

Completing the Disclosure Form

The CMS online tool is the only method allowed for completing the required disclosure. From this link, follow the prompts to respond to a series of questions regarding the plan. The link is the same regardless of whether the employer’s plan provides creditable or noncreditable coverage.

The entire process usually takes only 5 or 10 minutes to complete. To save time, have the following information handy before you start filling in the form:

  • Information about the plan sponsor (employer): Name, address, phone number, and federal Employer Identification Number (EIN).
  • Number of prescription drug options offered (e.g., if employer offers two plan options with different benefit levels, the number is “2”).
  • Creditable/Noncreditable Offer: Indicate whether all options are creditable or noncreditable or whether some are creditable and others are noncreditable.
  • Plan year beginning and ending dates.
  • Estimated number of plan participants eligible for Medicare (and how many are participants in the employer’s retiree health plan, if any).
  • Date that the plan’s Notice of Creditable (or Noncreditable) Coverage was provided to participants.
  • Name, title, and email address of the employer’s authorized individual completing the disclosure.

We suggest you print a copy of the completed disclosure to keep for your records.

Note: Employers that receive the Retiree Drug Subsidy (RDS), or sponsor health plans that contract directly with one or more Medicare Part D plans, should seek the advice of legal counsel regarding the applicable disclosure requirements.

Additional Disclosure Requirement

Separate from the CMS online disclosure requirement, employers also must distribute a disclosure notice to Medicare-eligible group health plan participants. The deadline for distributing the participant notice is October 14 of the preceding year. It often is difficult for employers to identify which employees and spouses may be Medicare-eligible, so most employers simply distribute the notice to all participants regardless of age or status. For information about the notice requirement, see our previous post.

 

Originally Published By ThinkHR.com

As the first month of 2018 wraps up, companies have already begun the arduous task of submitting budgets and finding ways to cut costs for the new year. One of the most effective ways to combat increasing health care costs for companies is to move to a Self-Funded insurance plan. By paying for claims out-of-pocket instead of paying a premium to an insurance carrier, companies can save around 20% in administration costs and state taxes. That’s quite a cost savings!

The topic of Self-Funding is huge and so we want to break it down into smaller bites for you to digest. This month we want to tackle a basic introduction to Self-Funding and in the coming months, we will cover the benefits, risks, and the stop-loss associated with this type of plan.

THE BASICS

  • When the employer assumes the financial risk for providing health care benefits to its employees, this is called Self-Funding.
  • Self-Funded plans allow the employer to tailor the benefits plan design to best suit their employees. Employers can look at the demographics of their workforce and decide which benefits would be most utilized as well as cut benefits that are forecasted to be underutilized.
  • While previously most used by large companies, small and mid-sized companies, even with as few as 25 employees, are seeing cost benefits to moving to Self-Funded insurance plans.
  • Companies pay no state premium taxes on self-funded expenditures. This savings is around 5% – 3/5% depending on in which state the company operates.
  • Since employers are paying for claims, they have access to claims data. While keeping within HIPAA privacy guidelines, the employer can identify and reach out to employees with certain at-risk conditions (diabetes, heart disease, stroke) and offer assistance with combating these health concerns. This also allows greater population-wide health intervention like weight loss programs and smoking cessation assistance.
  • Companies typically hire third-party administrators (TPA) to help design and administer the insurance plans. This allows greater control of the plan benefits and claims payments for the company.

As you can see, Self-Funding has many facets. It’s important to gather as much information as you can and weigh the benefits and risks of moving from a Fully-Funded plan for your company to a Self-Funded one. Doing your research and making the move to a Self-Funded plan could help you gain greater control over your healthcare costs and allow you to design an original plan that best fits your employees.

Do I need life insurance once I retire? Just because you’re retired doesn’t necessarily mean you’re financially sound.

Think of all the different scenarios that may still be applicable: You may have been required to retire early; you may have had investments that have gone sour and haven’t had time to rebuild your nest egg. Additionally, there may be a need to cover final expenses, you may have children still at home who depend on the them, or you may have a family member like an aging parent or special-needs sibling that you provide financial support for.

The bottom line is this: If you owe someone, love someone, or someone depends on on you financially, you need life insurance. And just because you’re retired or old doesn’t mean those three things go away.

Do I need the same amount of life insurance coverage as I did before? If you bought the life insurance to replace income and have built up their investments, maybe not.

Then again, if you have built up their investments over the years, there may be some state or federal inheritance tax that will have to be paid upon their death. And even if there is no federal tax, there may still be significant state inheritance tax. There are also things like probate costs, administration costs; there might be final debt or a mortgage on house, too. So as long as there is some type of financial exposure, you need life insurance to match up with that.

If I don’t have one, is it still possible to buy a policy in retirement? Absolutely. Just because you’re old or older doesn’t mean you’re uninsurable.

I just got a call from someone doing planning for the family patriarch who’s 85 years old. They realized that right now, the estate is worth more than the combined amount of federal exemption and that there will be tax to pay. That’s where life insurance comes in, at less than a dollar for each dollar of tax.

Another reason to have the coverage is if someone has taken 100% pay-out on their pension, with no survivorship provision. If that person dies, no money gets paid out to the surviving spouse. This is more common than you think. Nor is it unusual to hear that someone remarries and forgets to change the pension beneficiary. Life insurance can ensure that the spouse is taken care of.

What else should I know about having life insurance in retirement? People don’t often talk about the living benefits of life insurance.

Let’s say you no longer need the death benefit, but are living with a lingering, terminal illness and may not have sufficient cash to pay medical expenses. The accelerated death benefit provision means you can go to the insurance company and pull down money from the policy to absorb the costs of that illness and avoid bankruptcy.

A permanent life insurance policy is also a place to put money aside that gives you a better rate of return than a low pay-out CD or putting money in a safely deposit box. It’s a way to have some safe money invested at no risk—it’s just there for when you need it.

By Marvin H. Feldman
Originally Published By LifeHappens.org

It was recently unveiled the latest findings from our 2017 Health Plan Survey. With data on 20,099 health plans sponsored by 11,221 employers, the UBA survey is nearly three times larger than the next two of the nation’s largest health plan benchmarking surveys combined. To learn more, watch this short video below.

I just want to let you know that YOU ARE AWESOME. You’re always on top of things and answer questions promptly and in detail. I love working with you."

- Office Operations Administrator, IT Consulting Firm

Categories