Commentary & Opinion Archives - Page 32 of 85

February 13, 2019June 29, 2023

Benefits Roundup: The Employer Mandate and Fair Compensation

When you write about topics as broad as benefits and wellness, it’s easy to have too many ideas and want to write about a million things at once.

But that’s impossible. So these are some topics in the health and benefits space that have intrigued me these past few weeks. They relate to employee wellbeing based on compensation; the employer mandate; days off; and a wellness conference.

What’s been on your mind recently? Any trends, debates or legislation that you find especially fascinating? Let me know!

Unpaid Internships and the Government Shutdown

I had many reactions to the government shutdown, which doubtless made a lot of employees’ lives difficult, having to work in some cases while not getting paid while benefits were compromised and many people had to deal with things like not being able to afford basic necessities like food and rent. I recognize that the struggle this put on federal workers was very rough.

It made me think of unpaid internships. These interns must go through these exact same struggles (unless they’re wealthy, or their family is) of needing to work their asses off while not getting paid. A lot of students can’t take internships that would be good experience and look good on their resume because they need to make money and pay basic expenses. Proponents of the unpaid internship argue that they are a valuable learning experience or that students can get class credit.

But in my opinion as a millennial in the beginning of my career, most of us in college needed to take out loans to afford an education. Couple that with unpaid internships and entry-level jobs that for many fields pay minimally. The financial burden put on young people through education costs and unpaid work can be significant.

All I’m saying is, at least pay your interns minimum wage. It’s the least you can do. People should get compensated for the work they perform.

Some Employer Mandate News

I came across a couple of BenefitsPRO articles recently that highlight two opposing ideas of the same debate. In late 2018 the U.S. Department of Labor, Department of Health and Human Services and Treasury Department proposed a rule that employers could circumvent employer-mandate penalties by setting up a health reimbursement account that employees could use to purchase health care in the individual market.

The 2018 tax reform legislation struck down the individual mandate. But the employer mandate, an Affordable Care Act provision that states employers must provide affordable health insurance to employees or else face a fine, is still in place.

On the pro side: Large employees would realistically continue to offer group health plans to attract and keep talent. Meanwhile, it could potentially help smaller employers in the 50- to 100-employee range. Also, to avoid penalties, employers would have to make an HRA contribution such that “any remaining premiums the employee would have to pay wouldn’t exceed a percentage of his or her income to be considered affordable under the employer mandate.”

On the opposing side: Employers and employees may not fully understand the differences between employer-sponsored health care and the individual health insurance marketplace, and the limitations that exist between them. Also, the new rules could potentially incentivize employers to switch sicker, more expensive enrollees to the individual market.

“If employers could move sicker patients toward individual and short-term plans — some of which have more restricted coverage — the employer could save money. In addition, short-term plans often are more restrictive about pre-existing conditions,” the article states.

If these rules are finalized, they wouldn’t take effect until Jan. 1, 2020 at the earliest, according to BenefitsPRO.

What do you think?

Should the Super Bowl Be a National Holiday?

I want to give a shout out to a Twitter user and lawyer @SonyaOldsSom who responded to a Workforce tweet with something obvious but important. Also, it speaks to an even broader idea than what she was specifically talking about.

We posted a podcast in February 2018 in which hosts Rick Bell and Frank Kalman briefly discussed if the Monday after the Super Bowl should be a national holiday. That idea, simply, came from organizations’ frustrations that people often aren’t as productive as usual that day.

This was @SonyaOldsSom’s response:

Not before Election Day is https://t.co/Bm8RzGmqR1

— Sonya Olds Som (@SonyaOldsSom) February 2, 2019

Amen! Sure, National Super Bowl Monday is a cute idea to debate, but employers (and whoever decides what national holidays are) should consider the thing that’s been right under their noses for a long time. In general, for any organization, it can be easy to get swept up in trendy sounding ideas — whether that’s open office spaces, yoga classes or some other buzzword — but what’s more valuable to people are these straight-up practical ideas, like having voting day as an official holiday.

The MBGH Wellness Forum

I recently attended an employer-only wellness forum hosted by the Midwest Business Group on Health, and although I’ve already written about some of the major takeways, there were a few other ideas that came up that are worth exploring:

I spoke to a man who expressed to me one of his greatest frustrations in the workplace wellness space: when companies go gaga over wellness programs without addressing cultural concerns like an abusive or toxic work environment. I agree!
One of my unlikely tablemates was Bruce Sherman, medical director for the National Alliance of Healthcare Purchaser Coalitions. I’ve coincidentally already interviewed him for a story coming up in our March issue! At this conference, he gave a talk about addressing employees with multiple chronic conditions [note: “multimorbidity” is the coexistence of multiple chronic conditions] in your wellness programs. One of his ideas: disease management programs that specifically address one chronic condition oftentimes do not sufficiently help employees with multimorbidity!
Sherman also mentioned that while people in the health care industry tend to have a narrow, clinical mindset with patient health, patients have many more focuses and stresses in their life. Personal health is just one of them — and, according to one survey, it’s not even the highest priority. Ranking factors that stress people out, “personal health” is No. 8, below other factors like finances, family health and work schedule. Personal health is not something that exists in a vacuum for employees!

February 13, 2019June 29, 2023

How We Work Might Be Changing But Independent Contractor Risks Remain the Same

The way we work in America is changing. The relationships between companies and their workers are more fluid and varied than in decades past. Our task in this appeal is to apply traditional legal protections to one such relationship.

So starts the 6th Circuit’s opinion in Acosta v. Off Duty Police Servs., which applies the traditional “economic realities” test to determine whether private security and traffic control officers are employees or independent contractors.

One would think that with such a pronouncement at the head of the 6th Circuit’s opinion, the court would be making a startling pronouncement broadening the landscape of who qualifies as an independent contractor.

Those making that assumption, however, are sorely mistaken.

The “economic realities” test balances six factors:

The permanency of the relationship between the parties
The degree of skill required for the rendering of the services
The worker’s investment in equipment or materials for the task
The worker’s opportunity for profit or loss, depending upon his skill
The degree of the alleged employer’s right to control the manner in which the work is performed
Whether the service rendered is an integral part of the alleged employer’s business

In balancing the factors, the court determined that all of ODPS’s private officers were employees, and none qualified as independent contractors.

1. Permanency of the Relationship

This factor examines the length and regularity of the working relationship between the parties. While some ODPS workers accepts jobs intermittently and for short terms, many worked for ODPS long-term, and some for decades without interruption. In addition to length, many ODPS workers did so with regularity (e.g., 20 – 25 hours per week, or even up to 50 hours per week). These facts mitigated against the fact that many ODPS was not many workers’ primary job or their primary source of income. Yet, according to the court, multiple sources of income is not dispositive, and using such a fact to deny employment status would ignore the “economic reality” that many workers need two (or more) sources of income just to make ends meet. Thus, the court concluded that this factor weighed in favor of employment status.

2. Degree of Skill

The evidence showed that the workers required little skill to render services. Workers only need four hours of training, and many have no background in law enforcement whatsoever. The workers described the jobs as either sitting in their cars with their lights flashing, or patrolling a parking lot spotting potential problems. Thus, this factor weighed heavily in favor of employee status.

3. Investment in Equipment and Materials

This factor compares the worker’s total investment to the company’s total investment. While the officers needed to buy their own equipment and provide their own vehicles, each only invested between $3,000 and $5,000 of their own money, compared to the hundreds of thousands of dollars ODPS spent to operate the business. Thus, this factor weighed in favor of employee status.

4. Opportunity for Profit and Loss

Courts evaluate this factor by asking if workers “could exercise or hone their managerial skill to increase their pay.” ODPS argued that workers could do so, because they had the discretion to reject assignment, thereby limiting their ability to increase their pay. The court, however, was not persuaded. That discretion, according to the court, is not managerial skill. Moreover, because the workers worked a set shift when they accepted work, they had no control over how much they earned based on how long they worked. They could not earn more by completing the job more quickly and moving on another assignment. Their skill did not increase their ability to complete their jobs and accept more, it merely gave them discretion to say yes or no to jobs when offered. Thus, this factor weighed in favor of employee status.

5. Alleged Employer’s Degree of Control

This factor asks whether the company “retains the right to dictate the manner” of the worker’s performance.” ODPS maintained policies and procedures, which addressed: (1) the type and color of uniform that may be worn, (2) vehicle and light requirements, (3) rules for exchanging job assignments with other ODPS workers, and (4) general rules on workplace presentation and conduct. ODPS also represented to its customers that it would inspect the work sites and supervise its workers.Workers testified that ODPS disciplined them for violating work rules, such as declining jobs. ODPS set the rate at which the workers were paid, would tell the workers where to go for the job, when to arrive, and whom they should contact when they got there, and had supervisors to whom they reported. Workers were also required to sign non-compete agreements, and ODPS had sued former workers to prevent them from working for competitors. Thus, for the majority of ODPS’s workers, this factor weighed in favor of employee status.

6. Integral Part of the Alleged Employer’s Business

ODPS built its business around the security and traffic control services provided by its workers. It could not function or service its customers without them. Therefore, this factor weighed heavily in favor of employee status.

Balancing the evidence, the 6th Circuit had little difficulty concluding that ODPS’s workers were its employees, and not independent contractors: “Taking all these factors into consideration with an eye on the ultimate question of economic dependence, ODPS’s workers … were employees entitled to overtime wages under the FLSA.”

Off Duty Police Servs. serves as a stark reminder for employers that in all but the clearest of cases, businesses take a huge wage-and-hour risk by classifying workers as anything other than employees. The way we work might be changing, but the risk you take by misclassifying employees as independent contractors is staying exactly the same.

Also read: Identifying Independent Contractors Vs. Employees

February 12, 2019June 29, 2023

A Textbook Lesson: The ADA’s Interactive Process

Does an employer have an obligation to return an employee to work following an extended unpaid leave of absence granted as a reasonable accommodation under the ADA?

You might be inclined to say, “Of course.” The answer, however, is nuanced, and depends on the length of the leave, the composition of your workforce at the time the employee seeks to return to work, and your efforts to engage in the ADA’s interactive process with the employee during the leave.

For your consideration: Brunckhorst v. City of Oak Park Heights.

Gary Brunckhorst worked as an accountant for the city of Oak Park Heights, Minnesota, for over 15 years. In April 2014, he contracted Fournier’s gangrenous necrotizing fasciitis — a rare, life-threatening disease otherwise known as “flesh-eating” bacteria. He had three life-saving surgeries, spent five months in a hospital and nursing care facility and suffered long-term injuries.

At the outset of his hospitalization, Brunckhorst requested, and the city granted, FMLA leave. When that leave expired, the city granted an additional 60 days of unpaid medical leave and told Brunckhorst that he could qualify for an additional 30 more days thereafter. On Sept. 14, 2014, (the end of the initial 60-day unpaid leave), the city sent Brunckhorst his job description and asked him whether he could perform all of its essential functions of his position. Brunckhorst’s doctor responded that he was not able to return to work and that he needed additional unpaid leaves of absence, which was extended in serial through April 1.

In December 2014, however, the City Council had voted to eliminate Brunckhorst’s position as unnecessary. In an effort to soften the blow to Brunckhorst, is offered him the choice of a severance package or a return to work when he was able to do so in a new position, albeit with a 30 percent reduction in salary. Brunckhorst refused both, stating that he wanted to return to his original position. The city kept him on his unpaid leave in the interim, since he was not yet ready to return to work anyway.

Ultimately, the city gave Brunckhorst a hard April 1 deadline to return to work in the new position or be fired. Brunckhorst, through his attorney, refused and instead requested that the city permit him to work from home. The city refused, stating that remote work was not possible for the new position. It instead offered Brunckhorst a limited schedule as an accommodation — four hours per day four days per week in the office. When Brunckhorst declined the offer, the city terminated his employment.

The 8th Circuit Court of Appeals concluded that the city had not violated the ADA by eliminating his position, refusing to offer remote work as an accommodation, or otherwise failing to engage in the interactive process.

No reasonable juror could conclude that the City had failed to participate in the interactive process. Brunckhorst attempts to narrow the window of the interactive process to the last few days prior to his termination and claims that the City offered him only one, take-it-or-leave-it accommodation. To the contrary, the record shows that the City engaged in an interactive dialogue with Brunckhorst for months regarding his return to work. During that time, the City extended his leave multiple times, made multiple requests for information regarding what accommodations he required, and offered accommodations consistent with his doctor’s restrictions. There is no genuine issue of material fact that the City engaged in anything but a good-faith interactive dialogue.

This case provides a textbook roadmap for employers to follow when handling an employee on an extended medical leave. An employer can eliminate a position if the bona fides of its business and economic needs support that decision. It is not required to keep a position, or create a position, as a reasonable accommodation. It may have to offer an existing, vacant position, however. It also does not have to offer remote work if the essential functions of the position dictate otherwise.

If you are considering terminating an employee out on a non-FMLA unpaid medical leave, consider this question — will it appear to a reasonable jury that you tried to work with the employee to return him or her to work. If the answer is an objective “yes,” then you are likely on solid footing terminating the employee who refuses your offers to return to work (understanding that you may have to justify your actions and decisions in litigation).

February 11, 2019June 29, 2023

Emojis Are Starting to Pop Up in Discrimination and Harassment Cases

Law.com recently pronounced, “The Emojis are Coming!”

That article got me thinking, are they coming to workplace litigation, too? After all, emojis are a form of communication, and work is all about communication. Which would suggest that we would start seeing them in harassment and discrimination cases.

According to Bloomberg Law, mentions of emojis in federal discrimination lawsuits doubled from 2016 to 2017. Let’s not get crazy. The doubling went from six cases to 12 cases. But, a trend is a trend.

While harassment cases dominate these filings, it’s not just employees who are using 🍆 to establish a hostile work environment. Employers are using employees’ use of emojis to respond to alleged acts of harassment (such as 😄, or 😉, or 😉) to help establish that the alleged hostile work environment was either welcomed or subjectively not offensive.

For example, in Murdoch v. Medjet Assistance (N.D. Ala. 2018), the court held that the plaintiff’s use of a smiley face emoji in a text message to her accused harasser helped establish an absence of a hostile work environment. Similarly, see Bellue v. East Baton Rouge Sheriff (M.D. La 2018) (😉) Stewart v. Durham (S.D. Miss. 2017) (😘 and 😉); and Arnold v. Reliant Bank (M.D. Tenn. 2013) (😊).

On the flip side, consider the salacious sexual harassment lawsuit filed against celebrity chef Mike Isabella. According that lawsuit, Isabella referred to attractive female customers as “corn” after one of his chef’s commented that one woman was “so hot, [he’d] eat the corn out of her shit.” The lawsuit alleges further acts of harassment via text messages with with corn emojis 🌽.

Also read: Harassment By Emojis

These cases all beg the questions, “Do you need a workplace emoji policy?” I answered this question in 2017 with an emphatic “NO.”

Most employers already have an emoji policy. It’’s called your harassment policy. You do not need a separate policy to forbid your employees from using what is becoming an acceptable form of communication … .

We can have a healthy debate over the professionalism of emoji use in business communications (like this one). Indeed, according to one recent survey, “nearly half (41%) of workers use emojis in professional communications. And among the senior managers polled, 61% said it’s fine, at least in some situations.” My sense is that your view of this issue will depend on a combination of your age, your comfort with technology, and the age of your kids.

As for me, I use emojis all the time, even at work. Email is notoriously tone deaf. It’s easier for me to drop a 😊 into an email to convey intent than to tone down my sarcasm.

In other words, 😁. Emojis are 👌, and it’s perfectly fine to ❤️ them at work 👍.

February 7, 2019June 29, 2023

Eating Disorders Belong in Your Workplace Behavioral Health Strategy

A while back a source mentioned to me that many people have a limited view on mental illness. It’s depression; it’s anxiety; or maybe it’s PTSD. But there are many more mental illness conditions to address. Like eating disorders.

Eating disorders account for the highest mortality rates of all mental illnesses, with someone dying every 62 minutes as a direct result of an eating disorder. The National Alliance of Healthcare Purchaser Coalitions hosted a webinar a few weeks ago on the topic — perfect timing to educate employers for Eating Disorders Awareness Month in February.

The alliance referred to eating disorders as a “hidden health crisis” in email communications about the webinar and, I have to say, to me this sounds like an accurate way to describe it. I had no idea that they accounted for so many deaths! I also fell victim to the stereotype that the demographic most likely to develop an eating disorder are young, white, rich girls. Really, it cuts across gender, ethnicity and socioeconomics at pretty much the same rates.

Also, as someone whose been writing about benefits, wellness and health for 2 ½ years, this may have been the first time I’ve seen a pitch or an event about eating disorders. Panelist Craig Kramer, global mental health ambassador at Johnson & Johnson, cited some basic numbers on eating disorders:

30 million Americans suffer from eating disorders, including anorexia, bulimia and binge eating disorder. There are other problems that are still in the process of being officially defined as a disorder. To be clear: An eating disorder is different from dieting or occasionally consuming too much. It’s a clinically diagnosed mental health disorder.
Eating disorders are “the only chronic condition of the young,” with half of sufferers experiencing them by age 14 and 75 percent by age 24. Most people don’t receive treatment, for reasons like stigma and lack of access, and the longer they wait to treat it, the worse it gets. Although people often develop this at a young age, it’s possible for people to still have an eating disorder into old age.
The eating disorder community is underfunded, raising about $10 million per year. Kramer pointed out that an organization dedicated to autism, Autism Speaks, raises $50 million a year.

There are several reasons why this applies to the employer population. One, this is a major mental health consideration, and many employers are saying they want to address mental health issues. Two, employers are developing an affinity for employee health and wellness programs. As they focus on areas like exercise, diet, weight loss, healthy eating initiatives and body mass index, they should also acknowledge that eating disorders are a big deal. Three, people have eating disorders in the workforce but have never received treatment for it.

One of the interesting ideas that came from this webinar was the causation of eating disorders. Alliance President and CEO Mike Thompson brought up an organization that deals with childhood obesity. Through this organization, Thompson learned how sensitive one must be when they talk about weight with children. It’s possible to push a child in the direction of developing an eating disorder if you don’t communicate with them the right way.

This reminded me a Corporate Wellness magazine article about the impact of wellness programs with people suffering from eating disorders. This messaging could be sensitive to other people, not just developing children.

The National Eating Disorders Association was one of the organizations that, three years ago, opposed the EEOC’s “voluntary wellness rules” that allowed for incentives up to 30 percent. According to the association:

“There’s an increasing trend of tying these [wellness] programs to health insurance benefits, with penalties that can mean that the employee ends up paying more money for their health insurance. Additionally, these programs aren’t necessarily just harmless ways to encourage people to be healthier, they could also include office-wide, Biggest Loser-style group weight loss programs that can be triggering for people who struggle with disordered eating.”

The bottom line for employers: Don’t underestimate the impact of an eating disorder, even in a workforce full of adults. Think about eating disorders when you’re crafting messages for weight-loss programs.

When you’re thinking of your population, ask yourself, “How easy it is for them to find an in-network specialist provider who has adequate training, specifically treating this [eating disorder]?” said panelist Jenna Tregarthen, founder and CEO of Recovery Record.

And, as panelist Kristina Saffran, co-founder and CEO of Project Heal, said: “People are not quite sure where [eating disorders] belong. Although there’s a medical and a behavioral component, it is a mental health condition when it comes down to it. So, it should be a part of your behavioral health strategy.”

Other wellness topics on my mind …

Money and motivation: There’s an idea floating around that more money doesn’t motivate people; rather, other rewards like trips or non-cash prizes do. Every time I read or hear that, I have one major reaction, even though I don’t doubt there’s some truth in this. It makes perfect sense in certain contexts. Still, I hope companies don’t use this as an excuse not to give employees standard-of-living raises or to raise minimum wage. Financial wellness is more than just giving employees access to financial advisers or tips on how to save money. It’s also acknowledging that as the cost of living rises, appropriate compensation will help them with basic financial needs.

Hate crimes: Ever since the alleged hate crime against “Empire” actor Jussie Smollett, I’ve been seeing a lot online about the broader topic. For example, the number of hate crimes in Washington, D.C., have nearly doubled since 2016, with crimes based on sexual orientation accounting for half the city’s total hate crimes in 2018, according to the Washington Post. This is a major public policy and public health issue, but the workplace should take notice, too. I plead with employers — no matter what religion or morality your organization associates with — to think seriously about how your employees’ behavior and workplace policies impact LGBTQ people, especially now. Are you taking incidences of harassment or discrimination against this community seriously?

As columnist and employment law blogger Jon Hyman has written in several posts in Workforce’s blog The Practical Employer, there is no good reason for employers to be anti-LGBTQ rights. Hyman wrote:

“When LGBTQ discrimination becomes universally illegal in the United States (and it will), and history looks back on this era during which this brand of discrimination was questionably legal, on what side of history do you want to be as an employer? The side that condoned (or, worse yet, participated in) this discrimination, or the side that took a stand against it?”

Good news from our columnist!: Jennifer Benz, the Benefits Beat columnist for Workforce magazine, had a major announcement recently. Benz Communications has joined forces with consulting firm The Segal Group. Benz is now the SVP communications leader at Segal Benz. Congratulations, Jennifer!

February 6, 2019June 29, 2023

President Trump Calls for Federal Paid Family Leave During State of the Union

February 5 was the 26th anniversary of the Family and Medical Leave Act being signed into law.

During last night’s State of the Union Address, President Trump called for Congress to make paid family leave a federal law.

I am also proud to be the first president to include in my budget a plan for nationwide paid family leave — so that every new parent has the chance to bond with their newborn child.

The devil is very much in the details. We have zero idea what this law would look like.

Who will pay for the leave — employers, directly via payroll, or employees, indirectly via a tax the funds a government benefit pool?
How much paid leave will the law provide — 6 weeks, 12 weeks, more, less?
What family issues will be entitled to paid leave — just childbirth, the same scope as the FMLA, or will be it broaden protections to other parental issues such as school-related events?
Which employers will it cover — those with 50 more more employees, 25 or more, or even smaller?

Before we heap too much praise on this effort, we need to know details. Still, the United States remains the only industrialized nation that does not guarantee working mothers paid time off after childbirth, and we lag behind most of the rest of world on other paid family leave.

Frankly, it’s embarrassing, and it’s high time we joined the rest of world on what appears for everyone else to be a non-controversial issue. Anything that moves this debate forward is an effort worth applauding.

February 5, 2019June 29, 2023

How to Recover a Stolen Computer From an Ex-employee in 7 Easy Steps

As many as 60 percent of employees who are laid off, fired or quit admit to stealing company data.

Sometimes they download information on their way out the door. Sometimes they email information to a personal email account. And sometimes they simply fail to return a company laptop or other device that contains the data. In the latter case, according to the Ponemon Institute, it costs an average of $50,000 for an employer to replace a stolen computer, with 80 percent of that cost coming from the recovery of sensitive, confidential and proprietary information.

When you put this data together, it becomes increasingly apparent that businesses must take proactive steps to protect their technology and data.

In light of these stats, let me suggest a seven-step plan to recover your devices and the crucial information stored on them after an employee leaves your organization.

1. Institute a strong electronic communication and technology policy, making clear that all data and equipment belong to the company, and must immediately be forfeited upon the end of employment. Or, better yet, have employee signed an agreement affirming their obligations regarding the confidentiality of your data and confirming the obligation to return everything at the end of employment.
2. Cut off an employee’s e-access to your network as soon as you have notice that an employee has departed.
3. Remind employees upon termination or resignation of their absolute duty to return all data and equipment, including laptops, mobile devices and removable storage devices.
4. To the extent you have the capability, and you have confidence that you have your own backups of the employee’s data, remote wipe any unreturned devices.
5. If any data or equipment is missing, enlist the aid of an attorney to send a clear message that unless everything is returned immediately, the company will litigate to get it back.
6. Enlist the aid of a computer forensics expert to determine if, when, and how any data was stolen, and, if so, of what that data consisted.
7. Sue.

Notice that a lawsuit against the employee is step seven, not step one. In most cases, going to court is the last resort. It is expensive and time consuming.

Yet in many instances it is unavoidable. And depending on the scope of the suspected theft and the data at issue, it may quickly move up the list.

February 4, 2019June 29, 2023

Workplace Wellness Dominates at Employer Forum

One perk of working in a city as big as Chicago is the conferences, big and small, that provide learning opportunities, ideas, and free coffee and bagels in the morning — especially the everything bagels.

The Midwest Business Group on Health held an employer-only forum on wellness, well-being, and engagement Jan. 23, giving me the chance to hear what employers had to say, chat with my table mates informally about workplace health, and listen to several experts speak on different health-related topics.

Many more ideas came up in the seven-hour forum, but here are the major takeaways that any employer should be aware of:

The Workplace Wellness Debate: Ryan Picarella, president of the Wellness Council of America, spoke about rethinking the approach to workplace wellness and building inspired organizations. Even though health care costs are going up and even though organizations are spending more money on health and wellness than before, population health is declining. Something needs to change in wellness strategy.

One topic he brought up was the debate over the value of workplace wellness. He thinks it’s fun to debate, and I agree! The reputation of workplace wellness goes up and down through phases, from something that’s celebrated to something that gets analyzed in “Workplace Wellness Programs are a Sham” articles. Where does the truth lie?

I happen to land on the more skeptical side of this (as I do with many topics), unlike Picarella who is more optimistic. That aside, one point he brought up is hard to argue: No matter what side of this debate you’re on, what we can agree about is that having happy, healthy employees is important, and something needs to be done to improve employee health.

He gave a lot of behavioral-science-based ideas for improving wellness programs, like by thinking about what motivates people, how environmental factors impact employees, and where employees’ sense of purpose lies. Workplace wellness programs need a foundation that addresses people’s basic needs like food and shelter. A program that addresses something like the importance of nutrition or going to the gym without acknowledging that some people won’t be able to focus on that if their priority is keeping the lights on or putting food on the table? That won’t do.

Another idea he shared is simple, but I find it to be strong. It’s one of those statements that’s obviously true, but I can see organizations and people not following it in practice in more areas of business than just wellness. More wellness activities and programs aren’t always better, he said. Rather than think about adding another thing, and another thing, and another, think strategically about the value add.

Persuasion Vs. Manipulation: Part of this event was a roundtable discussion about the role of trust in wellness. When someone communicates to you, the message may sound like persuasion or as manipulation, depending on how you feel about that person. Even a neutral message can read as manipulation if you do not trust the party providing the information.

Everyone in the room had discussions with their tables and then with the whole room about how to build trust in the workplace.

I love this discussion because there are so many deterrents to trust now, like with data privacy. Bring in wellness programs to that topic, and you get health data privacy, which is something people can be understandably sensitive about.

Without going into too much detail, the audience response here was interesting. One person spoke about employees worried about where their biometric data was going. The organization responded to this concern by making it crystal clear to employees what the company could see, what they couldn’t see, how the data was protected, and what they’d need to talk to the vendor about for answers.

Another audience gem: One person suggested including compassion in your messaging, and making sure your vendors do, too. At the organization, some employees had complaints about how rude a vendor was in answering questions and addressing concerns. The organization responded by reaching out to the vendor with this issue and suggesting that the call center employees go through compassion training.

In conclusion, be direct, transparent, and comprehensive.

Also, my initial big-picture reaction to this issue of trust: Isn’t a certain amount of skepticism healthy? Why should any employee blindly trust their employer? How much trust is realistic for employers to expect?

A piece of career advice that has stuck with me over the years is that even though loyalty and working hard are important, you need to look out for yourself. Don’t blindly believe that your employer always has your best interests in mind. If you feel guilty about quitting when you need to move on with your career, remember that at the end of the day if an employer comes across financial trouble, they may very likely lay you off. It’s just business as usual. Both sides can respect each other but acknowledge the reality that their employment contract is business, not personal.

The idea I’m trying to get across here — as somebody who sees that direct correlation between trust and loyalty — is that employers should want and expect employees to ask questions, be curious and even be skeptical when it comes to workplace matters that concern them. It gives both sides a chance to build a professional level of trust.

What do you think? What wellness-based conversations do you think more employers should be having with one another?

February 4, 2019June 29, 2023

The 5th Nominee for the Worst Employer of 2019 is … the Fishy Fishery

Atlantic Capes Fisheries agreed to pay $675,000 to settle a lawsuit filed by the EEOC alleging sexual harassment and retaliation.

The allegations that lead to the settlement, and this nomination as the worst employer of 2019?

A male supervisor, Fidel Santos, asked a new female employee, Esdeyra Rosales, about her personal life, stood close behind her while she was working, touching her back, hips, and buttocks. When she objected, he told her there was no work for her. When Rosales asked, and was granted, reassignment to another line, Santos’s harassment did not stop. He continued to make rude comments about her body and solicit her for sex. On one occasion, Santos approached Rosales from behind and asked her to touch his penis. When she refused, he pressed up against her, rubbing his penis against her buttock. Rosales complained to management, but they told her either to ignore it, or that they would “look into it.” The harassment, however, continued.

The harassment was not isolated to Rosales. Santos also allegedly harassed Margarita Fuentes, Mirna Pacaja, and others.

On Fuentes’s first day of work, Santos grabbed her buttocks. When she objected, Santos told her, “Here, anything goes.” Fuentes immediately complained to a manager, who told her that Santos was “crazy” and that she should just ignore him. The very next day, Santos came up behind Fuentes, grabbed her hand, pulled it behind her back, and placed it on his penis. When she resisted, Santos called her a “stupid old lady,” and that she was expected to do what she was told. Fuentes again complained to management, who again told her just to ignore it. The alleged harassment even after Fuentes ultimately secured a transfer away from Santos. He would find her, and call her “stupid” and “good for nothing,” question why she would not submit to him sexually, and hypothesize about her sex life.

Pacaja had worked for the fishery for 4 years before being transferred to Santos’s line. He allegedly similarly harassed her, almost from the start. He would grab her waist and hips, comment on her genitalia and buttocks, complain that she would not submit to him sexually, ask her to touch his penis, rub his hands on her breasts, and rub his erect penis up against her.

When Pacaja and Rosales ultimately complained to the HR manager, and then filed discrimination charges with the EEOC, they started receiving written warnings concerning alleged interpersonal issues with their co-workers. Within weeks they were both fired.

According to EEOC Senior Trial Attorney Sara Smolik, “The brave women who filed discrimination charges with the EEOC in this case alerted the agency to widespread sex harassment that was adversely affecting them and many of their female co-workers in the facility. Because they had the courage to step forward, the EEOC was able to investigate and bring this lawsuit to improve the working conditions for everyone.”

It also might lead to this employer being named the worst employer of 2019.

Previous nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

The 4th Nominee for the Worst Employer of 2019 is… the Flagrant Farmer

January 29, 2019June 29, 2023

When Can I Fire an Employee on Medical or Pregnancy Leave?

One of the questions that clients ask me most often is, “________ is out on a medical/pregnancy leave (or just returned); can we fire him/her?”

My response, always: “Why?”

There are several reasons why you might need to fire an employee who is absent from work on, or just returned from, an otherwise FMLA or ADA protected leave.

While picking up the absent employee’s work, you discover he or she was not doing his or her job.
You uncover misconduct committed by the employee (fraud, theft, etc.).
You need to reduce headcount or eliminate the employee’s position.

Thus, my answer is always the same — “Would you have fired or RIFed the employee absent the otherwise protected leave of absence?” If so, then you can go ahead with the termination, understanding that a large amount of legal risk does exist. It does not mean that the employee is bulletproof, but it does mean that you need to tread carefully, make sure everything is well documented, confirm consistent treatment, and understand you will need to pay severance in exchange for a release or face the prospect of a lawsuit.

Case in point: Nieves v. Envoy Air, Inc. (6th Cir. 1/14/19).

Nieves worked as a gate agent for an affiliate of American Airlines for 19 years. His employer permits employees to fly for free, but prohibits employees from sharing their free travel benefits with anyone other than spouses or children. In April 2015, the employer randomly selected Nieves for an audit of its free travel program. In the middle of the audit, Nieves went out on an FMLA leave of absence. Upon his return to work, the audit continued, ultimately uncovering that Nieves had shared his travel benefit with ineligible individuals (his mother’s boyfriend, and non-children). Accordingly, the employer fired Nieves, just as it did with anyone it determined violate the free travel program.

Nieves sued, claiming that his termination, less than six weeks after he returned from FMLA leave, was in retaliation for the FMLA leave. The court disagreed:

Nieves argues that his travel log was given heightened scrutiny and that this raises an inference of a causal connection. However, nothing in the record supports that he was subject to increased scrutiny beyond the ordinary inquiry that follows a travel audit within the company. Envoy maintains that Nieves was flagged for an audit due to the number of entries on his travel log. According to American and its Matrix, an employee’s abuse of travel privileges is a terminable offense, regardless of whether the ineligible individual is currently listed or was in the past.

If you are going to fire someone during, or on the heels of, an FMLA or ADA leave of absence, you need a good reason, consistency, and the support of solid documentation. And even in that case, you face the choice of likely litigation, or a separation agreement with a payment of severance in exchange for a release. In all but the most egregious of terminations, I recommend the latter because the risk of the former is so great.

Also in The Practical Employer: Your 2019 Employment Law Compliance Checklist

NLRB Flip-Flops on Key Independent Contractor Test