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Category: Legal

Posted on April 2, 2013August 6, 2018

Deploy the Girl Scout Cookie Offensive to Ward Off Labor Unions

NewsOK reports that some employers have started banning their employees from promoting their kids’ fundraisers at work. At least one story has gone viral about a mom fired for hawking her daughter’s Girl Scout cookies to coworkers:

Tracy Lewis … was called into her boss’s office while working as a retail service manager for Bon Appetit, which provides various food services to the American University campus. Lewis claims her boss told her she was being fired for selling the cookies for her 12-year-old daughter’s Girl Scout troop out of her food cart, even though Lewis says she has done so for the past three years with no reprimand.

This reaction may not be as outrageous as you might think. In fact, there is a great legal reason to ban Girl Scout cookie sales and other similar solicitations in your workplace. As crazy as it sounds, it might prove to be one of your best weapons against a union organizing campaign. The catch is that you need both a sufficient broad no-solicitation policy, and the enforcement of it in a non-discriminatory manner.

A lawfully drafted and sufficiently broad no-solicitation policy prohibits anyone from soliciting during work time and in work areas. To the contrary, an overly restrictive policy would either ban union-related communications on its face, or operate to treat union-related communications differently than similar non-union solicitations.

The former is easy to spot. What does the latter look like?

Consider an employer with a strict no-solicitation policy that ignores Girl Scout cookie sales or March Madness brackets. If that employer disciplines an employee for engaging in union-related solicitations, has it enforced its no-solicitation policy discriminatorily?

The answer depends on whether the exceptions are so common that they swallow the rule, or are merely isolated incidents.

  • For example, in United Parcel Service v. NLRB, the 6th Circuit concluded that because employees “routinely distributed such materials as fishing contest forms, football pool material, and information about golf tournaments,” the employer could not enforce its no-solicitation rule against union-related distributions.
  • However, in Cleveland Real Estate Partners v. NLRB, the same court concluded permitting occasional and sporadic distributions did not demonstrate discriminatory enforcement of a no-solicitation rule.

I am immune to the charms of the Girl Scout cookie. While I love a Thin Mint as much as next person, my son has Celiac Disease, so I avoid bringing into my home glutened treated that he can’t enjoy. For the rest of you, however, consider whether permitting your employees to sell cookies or engage in other innocent solicitations is worth the risk that if a union organization drive rears its head, you will be left powerless to engage one of your key weapons—the no-solicitation policy.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Posted on March 14, 2013August 6, 2018

Do Employees Have Any Privacy Rights in Personal Emails Sent From Corporate Accounts?

Earlier this week, a story broke reporting that Harvard University surreptitiously viewed the work emails of 16 residential deans as part of its investigation into a cheating scandal. Your level of outrage at Harvard’s investigation will depend entirely on the degree to which you believe employees have an expectation of privacy in a corporate email account.

According to U.S. v. Finazzo (E.D.N.Y. 2/19/13), employees enjoy no such expectation of privacy, provided that you have the right language in your email policy.

In Finazzo, the U.S. government alleged that Christopher Finazzo, an executive at the clothing retailer Aéropostale, received illegal kickbacks from transactions between his employer and one of its vendors. During an unrelated internal investigation, Aéropostale discovered an email in Finazzo’s Aéropostale email account between him and his personal attorney. That email contained a list of Finazzo’s personal assets, which included several companies he co-owned with the vendor from whom he received the illegal kickbacks.

In his subsequent federal criminal trial, Finazzo attempted to block the government from using that email against him. The trial court denied his motion, holding that he had no expectation of privacy in his work email account.

In reaching this conclusion, the federal court relied upon Aéropostale’s email policies, which stated:

Except for limited and reasonable personal use (e.g., occasional personal phone calls or e-mails), Company Systems should be used for Company business only. Any limited exceptions to this rule must be approved through the IT department. Under no circumstances may Company Systems be used for personal gain or profit; solicitations for commercial ventures; religious or political issues; or outside organizations. Company Systems may not be used to distribute chain letters or copyrighted or otherwise protected materials….

You should have no expectation of privacy when using Company Systems. The Company may monitor, access, delete or disclose all use of the Company Systems, including e-mail, web sites visited, material downloaded or uploaded and the amount of time spent on-line, at any time without notification or your consent.

The court concluded that Aéropostale’s policy, and Finazzo’s knowledge of it, disposed of any claim that the email exchange with the personal attorney was private and therefore privileged:

Finazzo has no reasonable expectation of privacy or confidentiality in any communications he made through his Aéropostale e-mail account. Aéropostale had a clear and long-consistent policy of limiting an employee’s personal use of its systems, reserving its right to monitor an employee’s usage of the system, and making abundantly clear to its employees, including Finazzo, that they had no right to privacy when using them.

Do you have an email or workplace technology policy? Do you employees know that you have such a policy? Does your policy—

  1. Warn employees that they have no expectation of privacy in corporate emails or in their use of corporate systems?
  2. Ban personal use of corporate systems or email, or limit such personal use to what is reasonable and occasional?
  3. Reserve the right of the company to monitor employee use of its systems, including emails?

Following these simple steps will go a long way to dispelling any idea by your employees that their work email is private, while providing you sufficient coverage lest anyone challenge your ownership of employee corporate emails and or your right to search such emails.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Posted on March 8, 2013August 3, 2018

Legal Briefing: Discrimination as a Substantial Motivating Factor

Wynona Harris, a bus driver employed by the city of Santa Monica, California, was fired on the same day she submitted a doctor’s note to her supervisor stating that she could continue working through her pregnancy with limited restrictions. Harris sued, alleging pregnancy discrimination in violation of California’s Fair Employment and Housing Act, or FEHA.

At trial, the city asked the court to instruct the jury that if it found a mix of discriminatory and legitimate motives. The city could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her. The trial court refused the instruction, and the jury returned a substantial verdict for the employee. The appeals court reversed the decision. It held that the requested instruction was legally correct and that refusal to give it was prejudicial error.

The California Supreme Court affirmed the appeals court’s decision. The state Supreme Court held that when a jury finds that unlawful discrimination was a “substantial factor” motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, back pay or an order of reinstatement.

Requiring the plaintiff to show that discrimination was a substantial motivating factor ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. But the court also concluded that “in light of the FEHA’s purposes, especially its goal of preventing and deterring unlawful discrimination … that a same decision by an employer is not a complete defense to liability when the plaintiff has proven that discrimination on the basis of a protected characteristic was a substantial factor motivating the adverse employment action.” Harris v. Santa Monica, California, No. S181004, (Feb. 7, 2013).

IMPACT: Plaintiffs now have a heightened burden of showing discrimination when an adverse decision is based on both a discriminatory and non-discriminatory reason.

James E. Hall, Mark T. Kobata and Marty Denis are partners in the law firm of Barlow, Kobata and Denis, with offices in Los Angeles and Chicago. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

Posted on March 5, 2013August 3, 2018

Beware Saying too Much When Engaging in Pre-Suit Settlement Negotiations

Most lawsuits between employers and employees do not start out as lawsuits. They start out as conversations between the aggrieved employee’s lawyer and the company’s counsel. This order of events makes sense for both sides. If the parties can negotiate a deal pre-suit, everyone can save the time, expense, and aggravation of a protracted lawsuit. Additionally, a negotiated deal provides both sides certainty; once a lawsuit is filed, all bets are off and everyone’s fate rests in the unpredictable hands of a judge or jury.

When negotiating, Evidence Rule 408 (which bars the use of offers to compromise) provides everyone some peace of mind that the settlement offers will not end up in front of the jury at trial. This fact is important, because a company does not want a jury learning that an offer of settlement had been made. A jury might perceive such an offer as an admission of liability, or a floor below which its verdict cannot fall.

What happens, however, when, in the course of pre-suit negotiations, counsel makes statements that go beyond an offer of settlement, and discuss the merits of the underlying case? Bourhill v. Sprint Nextel Corp. (D.N.J. 1/23/13) [pdf] is a cautionary tale for employers’ counsel responding to pre-suit settlement demands.

After Sprint terminated Bourhill, he retained an attorney to pursue a disability discrimination claim on his behalf. Before filing suit, Bourhill’s attorney wrote the following to Sprint, to gauge the hope of a negotiated resolution:

While we have advised Mr. Bourhill that we are prepared to take his claims forward to litigation, he has advised us that he would prefer at this time to resolve this situation informally, by means of a [sic] adequate compensatory settlement. Please contact me, or have your attorney contact me, to discuss whether you desire to resolve this matter amicably, privately, and without resort to litigation. If I do not hear from you by February 22, 2010, we will proceed to take action to enforce Mr. Bourhill’s rights.

Sprint’s in-house counsel responded with a letter of his own, captioned, “Confidential/For Settlement Purposes Only”.

I spoke to your assistant last week regarding your client’s allegations that Sprint violated the New Jersey Law Against Discrimination. As I advised her, my investigation does not support your allegations. Mr. Bourhill’s employment was terminated when, after being out of work for eight months, he went on long-term disability, a termination which was mandated by the Plan documents. Our records show his long-term disability benefits were approved through May 31, 2010. Even if Mr. Bourhill was able to return to work without restrictions in December 2009, Sprint does not grant employees one-year leaves of absences and, in this case, would have been prohibited from doing so by the Plan documents requiring termination of employment. While Mr. Bourhill remained free to re-apply for available positions at Sprint once he was cleared for work, our records show he failed to do so.

I also further noted that although your letter of February 3 inquires as to Sprint’s interest in an amicable resolution, the letter does not request any specific relief. I asked your assistant if your client was attempting perhaps to use this letter as leverage to avoid repaying Sprint the overpayments he received in the amount of $7,564.57. She did not know but indicated you would get back to me. As I have not heard from you to date, I am following up via letter. In short, it is difficult to consider an amicable resolution without knowing the relief sought by your client. If you would like to get back to me with a specific proposal that also addresses the overpayments received by your client, I remain available. Thank you.

In the ensuing litigation, Bourhill’s attorney attempted to use Sprint’s counsel’s letter to defeat Sprint’s motion for summary judgment. Sprint objected, arguing that the letter was an inadmissible offer to compromise, barred by Evidence Rule 408. The trial court agreed with Sprint, but only as to the second paragraph of its letter, which discussed the money. The court allowed Bourhill to use the letter’s opening paragraph, which discussed the merits of the termination. The court believed that it could divorce the two paragraphs from each other if the first paragraph was not logically connected to the second. Because the first paragraph discussed the merits of the case, and the second monetary compensation, the court redacted the second paragraph under Evidence Rule 408, and considered the redacted letter as part of the record on Sprint’s motion for summary judgment.

This case teaches employers’ counsel a valuable lesson. We can fall into a trap of Rule 408 myopathy–that if we caption something “Rule 408 Confidential and Inadmissible Settlement Negotiations,” courts will consider it as such and bar its use. As Bourhill makes clear, courts can divorce substantive statements from settlement negotiations, and only bar the latter.

What is the lesson here? As a management lawyer, keep written settlement communications short and to the point–the offer itself. If you have to discuss the merits of the case with the employee’s lawyer, either do so over the phone or only put in writing what you live with a judge or jury considering.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Posted on January 10, 2013August 29, 2019

Abraham Lincoln: Listener-in-Chief

Seven score and eight years ago, one of our country’s iconic leaders did something extraordinary.

Fearing that the Emancipation Proclamation would not hold after the Civil War ended, the 16th president signed into law the 13th Amendment to the Constitution, which outlawed slavery. But it wasn’t easy. The story of Abraham Lincoln’s efforts to get the necessary two-thirds majority for the amendment to pass the House of Representatives is detailed in Steven Spielberg’s latest film, which is simply called Lincoln. Starring Daniel Day-Lewis in an Oscar-nominated performance, the movie focuses on the last part of Lincoln’s life, and it’s a compelling tale even if the film takes license at times.

Something that struck me in the film was how Lincoln, a president who was trying to end the bloodshed caused by the Civil War and get a controversial amendment passed, took the time to listen to citizens. While one biographer told the Chicago Tribune that it is unlikely that Lincoln would have met with soldiers on the street as he does in the movie, “Honest Abe” did hold what were essentially “office hours” at the White House. Yes, the “Great Emancipator” held office hours—at 1600 Pennsylvania Ave. nonetheless. In one scene in the film, a couple from Jefferson City, Missouri, calls on the president to help them settle a tollbooth dispute back home. Lincoln, in turn, asks the citizens to contact their congressman and tell him that he should support the 13th Amendment.

It occurred to me that many leaders, especially at large companies, do not make themselves all that accessible to their workers. Wouldn’t it be great if the Big Cheese opened the door for an hour or two each week to hear from employees? I know, there’s no time for that, right? Well, as John Ryan argues in an article on Forbes.com, to be a successful CEO, one must become a “chief listening officer.” I couldn’t agree more.

Imagine what ideas could be shared, what questions could be answered and what morale could be boosted. For employees, it would be intimidating at first, but if a CEO were committed to it, that fear would surely dissipate. I understand there are protocols and today’s CEO is often on the go much more than Lincoln was, but an open ear to fresh ideas should be welcomed. HCL Technologies, a Noida, India-based information technology company, tried the strategy a few years ago to much success.

Perhaps a conversation could take place that helps put the wheels in motion for a new project or innovation.

As Lincoln said, “Whatever you are, be a good one.” In terms of leadership, it seems like he came up with the perfect blueprint.

James Tehrani is Workforce’s copy desk chief. Comment below or email editors@workforce.com.

Posted on December 20, 2012August 6, 2018

The 12 Days of Employment Law Christmas

Since the holidays are almost upon us, and the news is a little slow, I thought I’d have a little fun. So I wrote a song. For your listening pleasure (you have to sing yourself; trust me, there’s no pleasure if I do it for you), I present The 12 Days of Employment Law Christmas.

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets
and a lawsuit for my company.

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eighth day of Christmas,
my employment lawyer gave to me
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the ninth day of Christmas,
my employment lawyer gave to me
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

Happy holidays!

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Posted on December 18, 2012August 3, 2018

Ohio Supreme Court all but Eliminates the Intentional Tort Exception to Workers’ Comp Claims

The history of the workplace intentional tort as an exception to the state workers’ compensation system has a long and tortured history in the annals of Ohio jurisprudence. In Houdek v. ThyssenKrupp Materials N.A., Inc. (Ohio 12/6/12), the Ohio Supreme Court may have put the final nail in the coffin of this long misused claim.

Generally speaking, the state workers’ comp law provides immunity to employers from their employees’ workplace injuries. In Blankenship v. Cincinnati Milacron Chems., Inc. (1982), the Ohio Supreme Court recognized a cause of action for an employer’s intentional tort against its employee, holding that because intentional tort claims do not arise out of the employment relationship, the workers’ compensation laws do not provide immunity from suit.

Blankenship started at three-decade odyssey to define the meaning of “intention.” This odyssey included three different statutes, the first two of which the Court declared unconstitutional. The current statute (R.C. 2745.01), the constitutionality of which the Court in 2010 blessed twice, provides:

(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.

(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

In Houdek, the plaintiff brought suit for an intentional tort under 2745.01 after being struck by a sideloader. He alleged that his employer deliberately intended to injure him by requiring him to work in a dimly lit aisle without a reflective vest and by failing to place orange safety cones or expandable gates to prevent machinery from entering aisles where employees were working.

The Court concluded that for an employee to prevail on an intentional tort claim, the employee must prove that that the employer deliberately intended to cause injury:

Absent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee’s exclusive remedy is within the workers’ compensation system.

The Court made clear that the law differentiates between accidents and intentional injuries, and that 2745.01 provides a remedy only for the latter:

Here, Houdek’s injuries are the result of a tragic accident, and at most, the evidence shows that this accident may have been avoided had certain precautions been taken. However, because this evidence does not show that ThyssenKrupp deliberately intended to injure Houdek, pursuant to R.C. 2745.01, ThyssenKrupp is not liable for damages resulting from an intentional tort.

The lone dissenter, Justice Pfeifer, laments that the majority’s decision ends the workplace intentional tort claim under Ohio Law:

The court below … wrote what the consequences would be if my dire evaluation of the law was indeed correct: “As a cautionary note, if Justice Pfeifer is correct, Ohio employees who are sent in harm’s way and conduct themselves in accordance with the specific directives of their employers, if injured, may be discarded as if they were broken machinery to then become wards of the Workers’ Compensation Fund. Such a policy would spread the risk of such employer conduct to all of Ohio’s employers, those for whom worker safety is a paramount concern and those for whom it is not. So much for “personal responsibility” in the brave, new world of corporations are real persons.” More’s the pity.

Houdek is a huge victory for Ohio’s employers. “Deliberate intent” is a very high standard for injured employees to meet, and should protect employers except in the most egregious of circumstances.

What cases will still prove problematic for employers under this statute? Because of presumption of deliberate intent created by 2745.01(C), those in which it is alleged that the employer deliberately removed an equipment safety guard or deliberately misrepresented a toxic or hazardous substance. How do you guard against these intentional tort cases?

  • Train all of your employees about the importance of safety guards, and the dangers of toxic and hazardous substances.
  • Inspect all equipment at the beginning and end of each shift to ensure that safety guards are in the proper place.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Posted on December 17, 2012August 3, 2018

The 401(k) Consolidation Conundrum

Nicole Cowley has held six jobs since graduating c­ollege in 2002. She also had six 401(k) accounts that went with the jobs.

Luckily, Cowley has an uncle in the financial business who helped roll most of her old accounts into an Individual Retirement Account. When Cowley took her latest job, in July, she decided to roll the 401(k) assets from the previous employer into the current one.

The rollover process had a few issues, she says. While filling out paperwork wasn’t too bad, forms got lost, and the check didn’t get deposited quickly. If it weren’t for her current job experience as a retirement plan education and communication specialist for Molewski Financial Partners, Cowley says she might have given up.

“I think this process is probably pretty difficult for most people because you have to know what you are doing” and how long things take, Cowley says. “There are a lot of places in the process that people might just forget the whole thing.”

Consolidating retirement accounts is typically a worker’s responsibility, but employers should make the job easier, experts say. Rolling money from former 401(k) plans could be good for workers and their companies, says Jeff Acheson, partner at Schneider Downs Wealth Management Advisors.

“If a plan is done right, pooling assets from former accounts should help plan sponsors realize better pricing structures,” Acheson says.

One of the largest drivers of total plan cost is the number of participants in a plan, according to the 401k Averages Book. Costs may be reduced if the funds in the plan increases, Acheson says.

For example, the 401k Averages Book—a tool many industry professionals use in benchmarking fees—shows a decrease in the total cost of plans when the number of participants remains the same, but assets increase. For example, a plan with 500 participants with $5 million in assets pays an average 1.56 percent total bundled cost (for administrative and investment management). A plan with the same number of participants having $25 million in assets pays an average 1.12 percent in fees, the 401k Averages Book reports.

“The larger a plan becomes, the better fee-negotiating ability it has,” Acheson says.

About five years ago, The Buckeye Ranch worked with Schneider Downs to encourage employees to consolidate their 401(k) accounts with their former employers. The Grove City, Ohio-based facility servicing troubled youths has the consulting group run financial education classes and offers individual sessions for employees interested in consolidating their old 401(k) accounts.

The first year that rollovers were available, about 10 percent of its workforce moved old accounts into Buckeye’s 401(k) plan, says Sherri Orr, Buckeye’s plan administrator and chief financial officer. As the program has grown, 110 additional employees and nearly $460,000 from rollovers are now in the plan. As a result of investments and rollovers, assets increased to $7.2 million in 2011, from $4.6 million in 2007.

“There are a lot of companies out there that don’t encourage employees to combine their old accounts,” Orr says. “The fee reductions we can get as an employer can be passed onto employees,” who typically pay for some or all of the management fees in 401(k) plans.

Sometimes rolling old assets into a current employer’s 401(k) plan isn’t a good strategy, says David Huntley, publisher of the 401k Averages Book. Workers who leave a larger company and move to a smaller one might not see a fee reduction. And although workers who might need a loan would be better off in a 401(k) where that option is available, many—especially younger workers—might be better off putting their old accounts into an Individual Retirement Account using indexed, lower fee-investments, Huntley says.

“If cost is the only issue, it’s difficult to find a 401(k) plan that has an all-in cost less than the 10 basis points you find in indexed funds,” Huntley says. “Everyone’s personal situation is so different.”

Patty Kujawa is a writer based in Milwaukee. Comment below or email editors@workforce.com.

Posted on December 7, 2012August 3, 2018

New Jersey’s Christie Rejects State-Run Health Insurance Exchange

One of the last holdouts among prominent Republican governors, New Jersey Gov. Chris Christie, put his state among a growing number that will defer to the federal government to run the health insurance marketplaces that are a key provision of the Patient Protection and Affordable Care Act.

The picture of which states would participate in providing tightly regulated individual and small-group coverage through the exchanges beginning in 2014 has rapidly clarified since the Nov. 6 election.

Under a Dec. 14 deadline to notify the Obama administration of plans to establish a state-based exchange, 21 states have indicated they will not form their own exchange. In states that decline, HHS will operate an insurance marketplace on its own or in partnership with state officials.

Like many of his peers, Christie complained that HHS has failed to provide states enough guidance to allow them to responsibly carry out the provision. “We will comply with the Affordable Care Act, but only in the most efficient and cost-effective way for New Jersey taxpayers,” Christie said in a news release announcing the decision to veto legislation that would have started establishing a state-based exchange. “I will not ask New Jerseyans to commit today to a state-based exchange when the federal government cannot tell us what it will cost, how that cost compares to other options and how much control they will give the states over this option that comes at the cost of our state’s taxpayers.”

U.S. Rep. Frank Pallone Jr. (D-New Jersey) issued a statement saying he was “deeply disappointed” in Christie’s move because the Affordable Care Act intended for states to tailor exchanges to their own markets and communities.

Another high-profile Republican opponent of the law, Arizona Gov. Jan Brewer, said on Nov. 28 that her state will not operate an exchange. Florida Gov. Rick Scott, who softened his resistance to complying with the Affordable Care Act after President Barack Obama was re-elected, has yet to reveal what course his state will take with its exchange.

Twenty of the states that have reached the same conclusion as Christie are led by Republican governors. In Missouri, where the governor is Democrat Jay Nixon, voters approved a ballot question prohibiting the governor from establishing an exchange by executive order.

In Michigan, it was the state’s Republican governor who had been pushing for a state exchange. Late last month, though, a legislative committee blocked an exchange measure backed by Gov. Rick Snyder.

Eighteen states and Washington, D.C., intend to establish their own exchanges. Four states have indicated they will operate exchanges in partnership with federal officials in order to be ready to begin providing coverage under the reform law in 2014. About 25 million Americans are expected by 2022 to be covered under plans purchased through the exchanges, according to a July estimate from the Congressional Budget Office (PDF).’

Gregg Blesch writes for Modern Healthcare, a sister publication of Workforce Management. Comment below or email editors@workforce.com.

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Posted on December 7, 2012August 25, 2023

Private Equity Firms Can Improve People Management

Charles Jones doesn’t fit the stereotype of a private equity mogul, or how such moneymen change company cultures.

Jones is founder and managing partner of Bedford Funding, a private equity firm that has bought a number of human resources software companies in the past few years. But while some private equity groups borrow heavily to acquire companies—leading to big debt service payments that can undermine businesses—Bedford Funding has done its deals without debt. And amid tales of selfish financiers sending American jobs overseas to cut costs, Jones did nearly the opposite recently.

When White Plains, New York-based Bedford Funding acquired software firms including Authoria and Peopleclick, it inherited an offshore workforce of a few dozen computer programmers in India. Under Jones’ leadership, the company decided to move those developers to the United States to improve collaboration and ultimately serve customers better. Most of the employees agreed to come over on work permits.

“As opposed to exporting jobs, we’ve imported these longtime employees,” Jones says.

Jones’ tale helps paint a more complete picture of private equity and its effect on companies and people management. Partly because of presidential candidate Mitt Romney’s background at Bain Capital, the private equity industry has come under intense scrutiny in the past year. President Barack Obama and other critics assailed Bain and other private equity firms for laying off workers and bankrupting companies. And overall, coverage of the industry has tended toward the extremes—either blasting the field for cutting jobs and killing workplace cultures or defending it as vital to turning around ailing firms and boosting the economy.

The truth lies somewhere in between.

While horror stories exist, in some cases private equity takeovers can lead to healthy updates of management methods and practices. These can include improved alignment between business strategies and employee rewards, greater focus on key talent issues such as retention and even a willingness to invest in hiring and higher pay.

“Private equity tackles business issues, including HR management, head-on,” says Bob Braddick, a senior partner at consulting firm Mercer who guides its global strategy for private equity. “They are thoughtful and decisive.”

Private equity firms generally take the shape of partnerships in which a group of managers raises money from sources, including pension plans and individuals, to invest.

The firms typically acquire companies and seek to increase their value over the course of several years in the hopes of realizing a profit by selling them or through a public stock offering. Private equity already touches many companies in the U.S. economy, and is poised to expand its reach.

According to the Private Equity Growth Capital Council trade group, there are 2,670 private equity firms headquartered in the United States as well as 15,680 private equity-backed companies based in the country that employ 8.1 million people. What’s more, the global private equity industry has “dry powder”—the trade group’s term for money available for investments—totaling some $900 billion.

The potential for more private equity deals irks industry critics. And they can point to cases that give the industry a black eye. For example, a private equity investment in holiday fruit basket seller Harry & David Holdings Inc. resulted in the company going bankrupt in 2011 even though investors made off with millions in profits, according to a Bloomberg report.

But such disturbing tales aren’t the entire story when it comes to private equity.

Sandy Ogg, operating partner at private equity giant Blackstone, says the field has moved past the days of slashing research-and-development budgets and skimping on customer service at acquired firms. “The industry learned long ago the lessons of ‘Strip it and flip it,’ ” he says.

Before coming to Blackstone two years ago, Ogg held executive HR positions at Unilever and Motorola Inc. Blackstone hired him as part of its efforts to handle effectively the people side of acquired businesses.

Along those lines, this year Ogg spearheaded the creation of a leadership committee designed to work alongside the investment committee that makes key decisions about what firms to buy and at what price. The goal of the new group is to assess the managerial talent needed to carry out the business plan at the acquired company.

Ogg chairs the committee, and it includes the CEOs of acquired companies as well as other operations experts. One sign of the new group’s importance: Blackstone’s legendary CEO also attends the meetings. “Steve Schwarzman is in every one,” Ogg says.

It’s important to recognize distinctions within the industry, says Chas Burkhart, founder of boutique private equity firm Rosemont Investment Partners. Rosemont, which is based outside of Philadelphia and has raised a total of $250 million since its inception in 2000, specializes in ownership transition deals within the asset management wing of the financial services industry. As such, Rosemont may help a group of managers buy out an asset-management business from aging founders or break out from a parent bank.

Burkhart says his firm tends not to take on debt in its acquisitions. And it tends to leave people management matters in the hands of executives that it works with in the acquired company. Rosemont officials have had seats on 23 company boards over the past 12 years but have never exercised a vote.

“We have a very light touch,” Burkhart says.

On the other end of the spectrum in terms of size is private equity firm Hellman & Friedman, which has raised more than $25 billion since 1987 and invested in more than 75 companies. Among its portfolio companies is HR software firm Kronos Inc. Kronos was a publicly traded company in 2007 when investors including Hellman & Friedman took it private in a deal valued at roughly $1.8 billion.

For Kronos employee Dave Ragusa, being owned by a private equity firm hasn’t hurt Kronos’ culture and may have helped it. Ragusa, a Houston-based project manager who implements Kronos software at retail clients, is glad the company doesn’t have to worry about the burdens of the Sarbanes-Oxley regulations facing publicly traded companies. Those federal rules had affected his job in ways including a more complicated, more time-consuming process for making changes to customer work.

He’s also grateful that longtime CEO Aron Ain remains at the helm, where he has shown sensitivity to military reservists like Ragusa.

Ain has a policy to make up the difference between Kronos’ annual pay and the pay employees get during military service when they are called up. That has remained in place under Hellman & Friedman ownership.

And in 2010, Kronos allowed Ragusa to spend a year away from work at the US Army War College, where he’d been offered a training opportunity given to just 2 percent of his reservist peers. While some employees of organizations taken over by private equity firms have bemoaned their new owners, Ragusa has no complaints about the arrival of Hellman & Friedman and no plans to go elsewhere.

“Someone would have to really knock my socks off for me to leave Kronos,” Ragusa says.

Ragusa apparently isn’t alone. Employee-satisfaction scores are higher at the company now than before it was bought by Hellman & Friedman, Ain says. The shift to private equity ownership meant the loss of just one job, Ain says. It was the company’s investor relations specialist, who was offered other positions at Kronos but decided to leave.

At the same time, Kronos gained management expertise from Hellman & Friedman, Ain says. “They’re really smart,” he says. “They’re always giving me ideas.”

For example, Hellman & Friedman prompted Ain to take a look at his sales force turnover rate in 2008. With that turnover running north of 30 percent the previous year, Kronos received the approval of Hellman & Friedman to invest $2 million in having management consultants come in to study the situation.

Their advice was to boost sales-force compensation by some $6 million. Again, Hellman & Friedman gave Ain the green light, and Kronos spent the additional money.

“They said do it,” he recalls, noting this was a decision taken in the midst of the recession.

Sales force turnover retreated into the “low teens” by 2009 and remains there today. To Ain, the investments have paid off. Kronos’ annual revenue has jumped from about $600 million at the time of the Hellman & Friedman acquisition to close to $900 million.

The kind of people-related investments Hellman & Friedman approved at Kronos are not uncommon, says Mercer’s Braddick. He says private equity firms have a certain urgency stemming from their goal to increase the value of the acquired company within a particular time period, which may be three to five years.

“There is a defined window to execute the business strategy,” he says. “If there’s a strong business case, they will invest in the business, and they will do it quickly.”

In addition, Braddick says private equity firms have beefed up their capabilities to help portfolio companies handle talent matters in the past decade or so. This includes turning to consulting firms such as Mercer, which offers private equity firms assistance with issues such as benefit programs, employee engagement and employee communications.

Braddick says private equity groups also have hired ex-HR executives—think Sandy Ogg—who can then counsel acquired firms.

That’s not to say everything always goes smoothly these days with private equity deals. Jones and Bedford Funding, for example, experienced a rocky leadership patch at the HR software firm they assembled.

In April 2010, Jones brought in an outside manager to oversee Peopleclick Authoria. But a number of former Peopleclick and Authoria employees grew dissatisfied with CEO Joe Licata’s management style and quit or announced plans to leave. In November of that year, Licata left and Jones stepped back in as CEO. He rehired at least 13 ex-staffers and issued stock options to each of the company’s 500 employees.

Licata, who currently serves as a director of electronics manufacturing company Sanmina-SCI, couldn’t be reached for comment.

Jones declines to talk about the details of that tumultuous period. But he says getting leadership right is tricky when stitching together companies. Melding multiple firms into one is what he has done at his HR software business, which was rebranded Peoplefluent in 2011.

Executives capable of overseeing a company with $5 million in revenue may not have the skills to lead a firm with $100 million in revenue, Jones says. In addition, if you are seeking to turn a collection of several software companies into a unified business with one head of finance and one head of development, there is going to be a shake-up among the executives of the previously independent firms.

At this point, though, Jones says Peoplefluent is on the right track. One sign of this is strong results for the quarter ended in September, when Peoplefluent reported a 28 percent increase in annual recurring revenue year over year. Employees, Jones says, are generally happy with president and CEO Gerard Murphy, who took the reins of the private equity-owned company in June.

“There’s a period of time of intense change,” Jones says. “People overall are more enthusiastic than they were three years ago.”

Ed Frauenheim is Workforce’s senior editor. Comment below or email editors@workforce.com.

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