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Dear Workforce What Can We Do When an Employee Has Exhausted the Leave-of-Absence Time Allowed by Our Workers’ Comp Policy?

Dear Sick About This:

As is the case in other states, Illinois has a workers’ compensation system to compensate employees for accidental injuries occurring in the workplace. All employers subject to the Illinois Workers’ Compensation Act must either carry workers’ compensation insurance or demonstrate that they are self-insured and have the financial resources to cover any reasonably anticipated claims. Thus, in such a world, your company’s injured workers are covered under the workers’ compensation system and paid accordingly for lost wages and any related medical.

Separately, your company has a leave-of-absence policy that has changed over time. It appears that your company offered employees salary continuation for a time period (e.g., two years) in lieu of paying them statutory workers’ compensation indemnity benefits. Further, policy language may also be similar to many leave policies that state that after an employee has been out of work for two years, he or she may be terminated from employment. However, please note that neither of these scenarios relinquishes a company/employer’s responsibility to the employee under workers’ compensation. Therefore, disability and related medical benefits would still continue to be paid per the workers’ compensation act until resolution, such as if the employee returns to work or the claim is settled.

You should look to see if your company has written the new Leave of Absence policy language to cover all employees; then the new may supersede the old policy for how much the employee is paid going forward (e.g., full salary vs. his/her appropriate workers’ compensation rate). This, of course, is barring any other circumstances under which the described employee may be covered (i.e., a result of collective bargaining). Such negotiated contractual language may firmly define how an individual’s personal time may be used.

Lastly, moving forward, you may wish to consider a leave-policy change to not allow any personal time to be used by individuals receiving workers’ compensation. If the injured worker is taking home the same/similar amount of money while out of work, then it is conceivable that there is no leverage or incentive for him or her to quickly return to work.

SOURCE: Jannell Knox, consultant, Towers Watson & Co., Atlanta

LEARN MORE: Workers’ compensation can be a minefield for companies, even when employees are on break.

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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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Nissans Return-to-Work Offer Inadequate in Comp Case

A factory worker is eligible for additional workers’ compensation benefits because Nissan North America Inc. did not provide her a “meaningful return to work” opportunity, Tennessee’s Supreme Court has ruled.


The case of Alicia D. Howell v. Nissan North America Inc. involved a dispute over benefits entitlement for a night-shift production line worker who required carpal tunnel surgery in 2006 and 2007.


After a doctor released Howell to return to work, she resigned and alleged that the injury affecting her hands did not allow her to keep up with the assembly line work she was provided. Nissan, however, argued that she was provided a meaningful return-to-work opportunity.


In 2008, after working a minimum wage job and still suffering from hand problems, Howell filed a petition under a Tennessee law that allows injured employees to seek reconsideration of awards of permanent partial disability benefits if they are no longer employed by the pre-injury employer at a certain wage, according to court documents.


In such cases, a trial court may award up to six times the employee’s medical impairment rating in additional permanent partial disability benefits if that worker does not receive a “meaningful return to work” offer and as long as the worker does not voluntarily resign or retire.


The law also limits permanent partial disability benefits to 1.5 times an employee’s medical impairment rating if he or she returns to work at a wage equal to or greater than the pre-injury wage.


In reviewing the reconsideration petition, a trial court found that Howell was credible and awarded her a 25 percent impairment rating and additional benefits under the law, saying she did not have a meaningful return to work experience.


A Special Workers’ Compensation Appeals Panel reversed the ruling, finding that Howell’s decision to resign was “unreasonable.”


However, the Tennessee Supreme Court disagreed. It reversed the panel’s ruling and reinstated the trial court’s opinion, finding that Howell still suffered hand problems.


“Ms. Howell testified that her grasp is still impaired and she has trouble holding onto things,” the Tennessee high court ruled last week. “Under these circumstances, the evidence does not preponderate against the trial court’s award of 25 percent permanent partial impairment rating to each upper extremity.”  


Filed by Roberto Ceniceros of Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.


 


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Pro-Union Employee Trying to Organize Target Store Is Fired

She was the face of the failed campaign to make a Long Island, New York, store the first unionized Target in the country. Again and again she told media outlets she was struggling to raise her daughter on what she earned as a Target sales floor team member.


Now, Tashawna Green, 21, of New York City, no longer has her $8-per-hour job. A Target supervisor fired her earlier this month, seven weeks after workers voted not to join United Food and Commercial Workers Local 1500.


The union immediately filed an unfair labor practice charge with the National Labor Relations Board, alleging Green was fired “because of her activities in support of the union.”


In a letter to the board, a union lawyer wrote that Green served as an observer for the election and gave statements to the board in support of charges the union filed against Target. The lawyer wrote that Green was fired after she was seen being dropped off at work by a union representative.


In a written statement, Target said Green was fired because she “recently acted in an overly hostile, disruptive manner that is inconsistent with Target’s policies.”


Green said she was told on Aug. 5 not to report to work the next day because supervisors were investigating allegations that she had spread rumors that all staff members of Jamaican descent would be fired. (Team members who hailed from Jamaica, including Green, had been the most vocal in support of unionizing.)


Early the next morning, she got a call from a supervisor with news of her termination.


“I believe I was fired because of my participation in the union campaign,” Green said. “Because I’m for the union, they wanted to get rid of me.”


Green, who had complained of being scheduled for 20 hours or fewer a week, said she was picked on because of her age and influence on other young workers at Target. She said the firing would set her back because “I do have a 6-year-old daughter to take care of.”


Alvin Blyer, regional director of the labor board, said his office received the charge and is investigating. He said the labor board planned to rule soon on dozens of other unfair labor practice allegations brought both by the union and by Target.


Local 1500 issued a formal challenge to the election, alleging workers were bribed and intimidated into voting against the union, and is seeking a rerun election. And late last month, Target filed charges of its own, contending union representatives threatened and physically assaulted employees as they continued to seek support after the election loss.


All Target stores are nonunion.  


Filed by Daniel Massey of Crain’s New York Business, a sister publication of Workforce Management. To comment, email editors@workforce.com.


 


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COBRA Program Subsidies to Expire at End of August

A popular government program that subsidized COBRA health insurance premiums for millions of laid-off employees will end this month.


Under the COBRA premium subsidy program, which was included as part of a huge economic stimulus bill Congress passed in February 2009 during the peak of the recession, the federal government pays 65 percent of COBRA premiums for involuntarily terminated employees.


Since then, Congress several times extended the program in which premium subsidies are provided to laid-off employees for up to 15 months. The last extension—approved in April 2010—extended the subsidy to those let go though May 31, 2010.


For employees who were laid off in May 2010 and have been unemployed since, their 15 months of COBRA premium subsidies will expire at the end of August.


Amid growing congressional worries about a public backlash against measures that would increase the federal budget deficit, the action Congress took in April 2010 to extend the subsidy to those laid off through the end of May marked the end of subsidy extensions.


The exact number of individuals who took the subsidy isn’t known. At the time the original subsidy legislation was passed, congressional analysts estimated that the subsidy would aid more than 7 million laid-off employees and their families and cost the government about $25 billion.


The subsidy had a dramatic effect on COBRA enrollment. A study conducted last year by Hewitt Associates Inc.—later acquired by Aon Corp.—found that the COBRA take-up rate among terminated employees working for large employers roughly doubled after the subsidy was available.


Initially, for employers, the COBRA subsidy created a lot of work as organizations had to locate laid-off employees and tell them of their new right to subsidized coverage. But over time, administrative problems eased.  


Filed by Jerry Geisel of Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.


 


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Appeals Court Rules for Employer in Undocumented Worker Case

An employer sued by an undocumented worker for disability discrimination and workers’ compensation retaliation is entitled to summary judgment, a California appeals court ruled Aug. 9.


The case of Vicente Salas v. Sierra Chemical Co. involves a seasonal production-line worker who used a counterfeit Social Security card with another person’s Social Security number to obtain work from Sierra intermittently over three years.


In March 2006, Salas injured his back while stacking crates and faced several medical restrictions, court records state. Sierra accommodated him with restricted duty, but he injured his back a second time after he was released for full duty. He then filed a workers’ compensation claim, but was laid off in December 2006 as part of Sierra’s annual production-line staff reduction.


Salas testified that Sierra recalled its workforce in 2007, but he was told he could return only if he were “100 percent recovered.”


He sued for violation of California’s Fair Employment and Housing Act, or FEHA, alleging Sierra failed to reasonably accommodate his disability and failed to engage in an interactive process. He also alleged the employer denied him work to punish him for filing a workers’ compensation claim and to intimidate others from doing so.


He then filed a motion advising the trial court he would assert his Fifth Amendment right against self-incrimination in response to any questions concerning his immigration status, and Sierra discovered that the Social Security number used by Salas to secure employment with the company belonged to a North Carolina resident.


The employer then moved for summary judgment, claiming the doctrine of “after-acquired evidence” related to the use of the counterfeit Social Security card barred Salas’ lawsuit.


The company also argued that it would not have hired Salas had it known he was using a counterfeit Social Security card. And it argued that the “doctrine of unclean hands” barred his claim because he misrepresented his eligibility to work in the United States.


Salas argued, among other things, that whether he misrepresented his Social Security number is irrelevant because the company could be liable for disability discrimination under FEHA regardless of his immigration status.


The trial court eventually ruled in favor of Sierra’s request for summary judgment, and Salas appealed.


On Aug. 9, California’s 3rd District Court of Appeals found that the case was not about “pervasive discriminatory conduct” but about refusal to hire, and that Salas “misrepresented a job qualification imposed by the federal government, i.e., possessing a valid Social Security number that does not belong to someone else.”


The appeals court ruled Salas’ claims are barred by the doctrine of after-acquired evidence, which provides employers a defense “where, after an allegedly discriminatory termination or refusal to hire, the employer discovers employee or applicant wrongdoing that would have resulted in the challenged termination or refusal to hire.”


The appeals court also found the doctrine of unclean hands barred Salas’ claim because he exposed Sierra to penalties for submitting false statements required by several federal agencies to establish a worker’s legal work status. The appeals court ordered Salas to reimburse Sierra for its costs on appeal.    


Filed by Roberto Ceniceros of Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.


 


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Aon Unit Sues Riskonnect After Employees Jump Ship

Aon eSolutions Inc. has filed a lawsuit against risk management technology provider Riskonnect Inc. and three former Aon employees for alleged misappropriation of confidential information and unfair competition.


The lawsuit filed by Aon Corp.’s risk management technology unit alleges that before three former Aon employees resigned and accepted positions with competitor Riskonnect in May, they “copied and removed, without authorization, Aon computer files containing trade secrets and/or confidential business information for the apparent purpose of using information to solicit business for Riskonnect,” according to the Aug. 5 complaint.


Aon also alleges Riskonnect encouraged or condoned the unauthorized activity and will therefore benefit from unfair competition.


“We see it as the David vs. Goliath story. It’s a little surprising that this large competitor is trying to take us on,” said Kelly Barton, vice president of marketing at Riskonnect, who also noted that the company has yet to see the complaint.


“We have still yet to be served. We have not seen the lawsuit. All we know is that there are some allegations of misappropriation of confidential information, and we know that three people and Riskonnect have been named,” she said.


Barton noted that Riskonnect has confidentiality and noncompete agreements with its own employees and expects employees joining from other companies to honor their own agreements.


“Of course, we don’t know all the facts that they’re alleging yet, but from what we have seen and understand, we can’t imagine that there’s any basis for it, and we will absolutely defend Riskonnect and these three employees for their right to work at a market-leading company,” Barton said.


Chicago-based Aon declined to comment.


Aon seeks injunctive relief and damages against the three employees and Riskonnect for wrongful activities, according to the lawsuit, which was filed in the United States District Court for the Eastern District of Pennsylvania in Philadelphia.  


Filed by Mike Tsikoudakis of Business Insurance-Europe, a sister publication of Workforce Management. To comment, email editors@workforce.com.


 


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Most Employers Say Workers Need Guidance on Benefit Decisions

Virtually all employers—96 percent—say their employees need guidance to make sound benefits decisions and education to help workers understand changes in their benefits programs, yet less than one-quarter—23 percent—say their company’s benefits education efforts are very effective, according to a survey taken at the recent Society for Human Resource Management conference.


The survey, conducted by Colonial Life & Accident Insurance Co., also found that just over half—51 percent—of employers plan to increase employees’ share of health insurance premiums, while nearly half—49 percent—are increasing deductibles and copayments in response to the rising cost of health care.

“Not surprisingly, employee benefits have taken a hit as companies wrestle with the rising cost of providing health coverage to their workforce,” said Randy Horn, president and CEO of Columbia, South Carolina-based Colonial Life, in a written statement.


Among other survey findings:
• 25 percent of employers are adding consumer-driven health plans.
• 21 percent are adding voluntary benefits options.
• 13.4 percent are eliminating some other benefit.


The survey included responses from more than 750 human resources managers and benefit managers attending the annual SHRM conference in Las Vegas in June.  


Filed by Joanne Wojcik of Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.


 


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Another Odd Couple—Weight Loss and Corporate Learning

I’d run on the elliptical about half an hour. My monitor said I’d burned 350 calories.

I was in the zone where my thoughts wander as I kept trudging away trying to lose weight. Our clients were asking this tough question: “We do training—classroom and online—but after that, how do we keep it alive? Do we need periodic webcasts, briefings, short classes, more refresher modules?”

At around 40 minutes on the elliptical, the thought hit me: learning is like losing weight—it’s what the learner does outside of all the training and refreshers that’s the key to success. We can and should supply tools, but for learning to last, the student, like the dieter, must do the heaviest lifting.

At around 45 minutes, more insight: We’ve been putting too much responsibility on content delivery and knowledge reinforcement. If a key goal of organizational learning is to lead to behavioral change, we need to give leaders, managers and other team members, more daily responsibility, not just episodic learning. Coaching and tools help, but dieters and students must apply what they’ve learned to get results.

I’ve wanted to lose weight for a while. I know all the health reasons, and I’ve gotten tired of having to increasingly loosen my belt. In mid-March, I heard a dynamic speaker, Jim Karas, discussing diet and weight-loss tips. He gave me, and a group of 15 other executives, advice on what to eat, how to exercise properly, and build weights into our regimen along with cardio workouts. He had an inspirational delivery, and he offered specific tips. I realized if I could follow them, I’d lose weight, feel better and have more energy.

I’ve lost 17 pounds so far and my goal is to lose more; how much, though, I’m keeping to myself. Losing weight involves diet and exercise. If you don’t maintain both practices, back comes the weight.

For most, it usually does. I know what I’m supposed to do, but will I keep doing it is the question. The key is ultimately not more knowledge but better habits driven by ongoing commitment and action. There are several tools that those managing their weight use and the principles are similar to those dieters use to keep the pounds off, which, by the way, requires long-term “culture” change.

• The right learning and message start the process. Karas’ presentation made me think about why I should change my habits and gave me a simple road map to follow. While he delivered a great presentation, if I didn’t take steps to follow it, there’d have been no results. Another lecture would start the process all over again but unless I actually took and maintained action myself between lectures, there’d be no continuity and no lasting results.

• Behavioral change is a daily process. I’ve made specific, clear changes in my daily routines. These include:
a. Keeping track of exercise and calories in a small journal I carry everywhere.
b. Recording what I eat and approximate calories in that same book.
c. Weighing myself daily on the same scale at the same time every day and recording the weight.
d. Discussing what I’m doing with others to keep me focused and committed and in a sense accountable to others not just me.
e. Realizing that this is a process, not just a single exercise or distinct short-term objective. That’s the reality if I want to keep the weight off not just have a temporary dip.
 
To organizations trying to change behavior and keep those changes in place, my advice is to deliver strong messages backed up by simple rules supported by daily ongoing practices. Think of it as a different kind of diet with the same outcome—long term and worthwhile changes.

Viewed this way, here are some tips to help learners include plans requiring them to:
a. Record what they are going to do to behave differently.
b. Every day, keep track of what they have done in line with what they have learned; this can and should take less than two minutes a day.
c. Discuss their activities and changes informally with other leaders in structured online or small group meetings, which are brief but regularly scheduled.
d. As with dieting, realize this is a process not a single exercise or distinct short-term objective.

Obviously, there are other steps, but these reflect the basic idea. It’s dieters who exercise, cut back on calories, change behavior in small increments every day and hold themselves accountable for the changes, with the right support who will lose weight and keep it off. That’s how lasting learning works, too.  

Stephen Paskoff is president and CEO of Atlanta-based ELI Inc., a provider of ethics and compliance learning solutions. He can be contacted at info@eliinc.com.

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Dear Workforce How Do We Handle a Mutiny in Our Senior Ranks?

Dear No Captain Bligh:

Anonymous letters like the one you’ve described are a pain for human resources professionals, who are the ones commonly tasked with running them to ground. Although it is difficult (if not impossible) to respond to such letters, resist any urge you have to ignore them: They often provide much-needed information. At a minimum, you should do two things:

  1. Determine whether the allegation has any substance. In other words, is there any fire accompanying the smoke?
  2. If possible, find out why more preferred feedback mechanisms (including the chain of command and your HR office) apparently weren’t used.

Obviously, if the letter contains any threats or hints of impropriety, a rigorous professional investigation to discover the author or authors becomes relevant, as well. Since you didn’t mention any, we’ll assume that isn’t the case here.

While we don’t know if the letter represents the legitimate concerns of a real group or simply the ranting of a lone individual, the fact that it purportedly comes from the management ranks is of special concern. If it did have the complicity of a group, this could certainly be an indicator of a debilitating trust deficit in the organization. Either way, it suggests a breakdown in the company’s feedback mechanisms.

Here’s what we’d recommend as appropriate responses, in sequential order:

  • Quietly approach a couple of individuals whom you trust—people who have their fingers pretty firmly on the pulse of the organization. Privately and confidentially ask if they think the letter accurately represents reality. If so, ask what things they have observed that supports the claims made in the letter.
  • Conduct a robust, broad-scope employee survey—now, not later. If yours is at all a labor-intensive business, you should probably be doing them anyway. A well-designed and implemented survey process has legitimate built-in anonymity. This is not a do-it-yourself job. Hire an experienced service provider with a track record of successful implementations. Insist on discreet reporting by managers, and pay close attention to the findings. If the survey, the private interviews, or both, corroborate the anonymous letter, you’ll need to devise—with input from your CEO—a plan to treat the symptoms and root cause. Depending on what you find, your CEO may need to brief the board of directors
  • Lastly, encourage (insist, if you’re in a position to do so) the CEO or another senior officer to meet with the management team as a group to discuss the anonymous letter, its contents and its tone. The message should be clear and unambiguous:

“The following letter was received. We obviously don’t know who sent it, but it purports to come from one or more of the people in this room. There are a number of legitimate and helpful ways to make concerns of this type known, but this is not one of them. If at any time, any of you (or someone in your organization) ever has a concern of this sort, you/they are encouraged and expected to talk with your reporting senior, our HR executive, compliance officer, or me promptly, openly, and honestly about it. You’ll never be punished for respectfully airing what you believe to be a legitimate concern.”

The way in which you handle this matter has the potential to earn additional trust and appreciation from your senior leadership. You’ve gotten off to a good start by seeking the benefit of outside perspective. Best of luck as you move ahead with addressing these issues.

SOURCE: Bill Catlette and Richard Hadden, Contented Cows, Memphis, Tennessee, and Jacksonville, Florida

LEARN MORE: All levels of management are needed to help rebuild trust in leadership.

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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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Mayor Tackles Tenure, Rarefying ‘Teacher for Life’

A job-for-life in New York City’s public schools was once a near-guarantee. Mayor Michael Bloomberg is trying to change that.

On July 27, the Bloomberg administration said new, more rigorous teacher evaluations had dramatically lowered the percentage of educators granted lifetime employment.

“Tenure ought to be reserved for only the best teachers,” Bloomberg said. “Unfortunately, as we all know, tenure was instead awarded on the basis of longevity, not performance.”

This year, however, of 5,209 teachers whose performance was evaluated by principals, 58 percent were granted tenure. That’s down from a five-year high of 97 percent in 2006.

“I don’t know a single profession where 97 percent [of employees] deserve to get lifetime job protection,” said schools chancellor Dennis Walcott. “Tenure is now something to be earned.”

Of the remaining teachers, 39 percent were given extensions, which means they are developing but have not achieved the expertise required for tenure. They will be given another year to improve before being re-evaluated. About 3 percent were denied tenure.

A new four-point scale evaluates teachers as highly effective, effective, developing or ineffective. In general, teachers are considered to be on probation for their first three years, after which they are eligible for tenure. During the probationary period, the Department of Education can fire within 30 days teachers who are deemed to be ineffective.

Once teachers are tenured, they can only be dismissed based on the decision of an arbitrator picked by both the Department of Education and the United Federation of Teachers.

Last week, Crain’s New York Business reported that in a pilot program testing the new teacher evaluations, 18 percent of teachers were deemed ineffective, while only 7 percent were considered highly effective.  

Filed by Jeremy Smerd of Crain’s New York Business, a sister publication of Workforce Management. To comment, email editors@workforce.com.

 

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