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Posted on August 17, 2007June 29, 2023

Rising in the East

BANGALORE—In a second-floor office off a dusty street here, computer engineers are building electronic health records for the American market. It’s just after 6:30 p.m. in late May and the evening snack—dahi vada, a local dish of fried dough drenched in a sweet yogurt sauce and topped with ground chili—has been served, as it is every day, to give employees an energy boost as they head into that time of day when the instant-messenger icons on their computers spring to life.

    More than 8,000 miles away, it’s morning in the United States. Computer engineers at Allscripts Healthcare Solutions, a software company with nearly 1,000 employees, begin to shuffle into the company’s nine U.S. locations. They prepare to discuss with their Indian counterparts how much progress was made on the project while the U.S. team was asleep.


    The American and Indian engineering teams are not part of the same company, but in order to take advantage of their 24-hour development cycle, they must act as one.


    The Indian team is HealthAsyst, a small software firm whose executives happily describe themselves as part and parcel of their American client’s workforce. This is exactly how Allscripts’ chief executive, Glen Tullman, envisioned outsourcing his development to India.


    “This isn’t about going somewhere and simply getting the lowest cost,” Tullman says via telephone from his company’s Chicago headquarters. “This is about getting the right talent at the right time.”


    Though still far cheaper than labor in the U.S., India is not the bargain it once was, for all the familiar reasons. The economic boom of the world’s second-fastest-growing economy (9.4 percent growth predicted for 2007) is straining the infrastructure of major cities, driving up the cost of real estate, creating salary inflation and setting off talent wars so fierce that a job candidate who accepts a position on Friday may decide to go with a different company come Monday. No one is more aware of this than Indian executives and their employees.


    Their solution, however, is not to race other outsourcing countries to the bottom of the economic ladder, but rather to the top. Instead of being the least expensive place to outsource, they want to offer the greatest value. And this strategy has changed the value proposition India offers potential customers: Rather than doing for cheap what they currently do—be it operating call centers, developing software products or managing a company’s IT infrastructure—Indian companies want to do more. They want to charge their partners for it and, better yet, share in the revenue they help create.


    There’s one catch: The company that is outsourcing must be prepared, in many cases, to work more closely with Indian workforces or, at the very least, see them not as a low-cost, low-skill labor set that operates in a vacuum, but as an extension of its own workforce. The question for executives of outsourcing companies, then, is this: Are you ready to commit to India?


    “Any company that wishes to outsource must have total clarity as to why it’s outsourcing,” says Rajan Bhandari, a senior manager and retired Indian navy commander who runs the New Delhi call center of iGate Global Solutions, an IT outsourcing company that is a subsidiary of Pittsburgh-based iGate Corp. Bhandari speaks in a tone that is both measured and forceful, and his voice booms over the hum of the air conditioner inside the company’s New Delhi office.


    “Is it outsourcing merely because its bottom line is hurting and it needs to keep the wolf from the door? That’s fine. It’s OK for the short-term solution. But these short-term solutions don’t hold for beyond a year because the wolf will come back to the door with an ever larger appetite.”


Business evolution
    To develop this clarity, one must first understand that the history of outsourcing is the story of Indian companies—and their employees—moving up the value chain.


    “When people think of what’s happening in India, they tend to think it’s low-end coding work and basic-level stuff,” says Subash Rao, head of HR in India for Cisco Systems. “That’s no longer true.”


    Or at least it is no longer the only truth. Thanks to India’s history as a British colony, a rich cultural legacy that has long valued education, especially in the sciences, and the country’s location in a time zone nearly 12 hours away from the U.S., India was uniquely positioned to be the first to take advantage of outsourcing opportunities.


    The seeds for India’s economic boom were planted in 1991 when the Indian government reversed a closed-door economic policy that had driven away foreign investment since the late 1970s. This economic liberalization infused the country with much-needed capital from companies like IBM and General Electric, which were among the first to take advantage of India’s low-cost talent pool.


    The rest of the world awoke to outsourcing in the late 1990s when Indian companies successfully proved they could manage high-volume, low-skill work. By fixing a computer’s date with a simple change of code, Indian engineers helped the world avert the impending doom of Y2K. Such high-volume, low-skill “process work” moved into other areas. Computer engineers took on projects maintaining and upgrading old software. Those with a college degree found opportunities, more recently, in business process outsourcing, doing data-entry processing of auto-insurance and dental claims.


    It can be mind-numbing work, says Ravi Vadapalli, global director of training and development for Virtusa, an IT consulting firm based in Westborough, Massachusetts. In his office in Hyderabad, an outsourcing center in southern India where Microsoft has its Indian headquarters, Vadapalli describes how it can look to the worker in India: “A thousand dental claims come in. There’s a software here, I look at something and click. Look at something, click. Look at something, click. That’s the lowest end. It gets meaningless. I have to work only for the money. So that’s a huge workplace stress.”


    Demand for workers and the nature of the work have led to high employee attrition rates in India, which today average around 40 percent in business process outsourcing and 15 percent in the higher-skilled IT services.


    Meanwhile, the sector is voracious in its need for workers. In 2007, 1.6 million professionals worked in India’s IT/BPO industry, according to Nasscom, the industry group representing Indian software companies.


    And though nearly 3 million young Indians graduate college every year, it has become harder and more expensive to recruit for low-end business processing and information technology work. Nasscom predicts that at current growth rates, the sector will need 2.3 million workers by 2010 but will have a supply of only 1.8 million, a shortfall of 500,000 knowledge workers.


    Some Indian companies, confident in their ability to train employees, have begun to hire younger, cheaper workers. ’’


    “What they’re saying now is, ‘Guys, you’ve done high school. That’s enough,’ ” Vadapalli says. ” ‘You don’t need to go to college; come to my workplace and I’ll get you a degree.’ “


    Many Indian executives worry that India cannot remain competitive as a country that goes only for the lowest-end, lowest-cost outsourcing contracts. Salaries alone are cheaper in Vietnam, according to a June 2006 report on global outsourcing salaries by consulting firm NeoIT in San Ramon, California. In 2006, salaries increased nearly twice as fast in India (14 percent) than in China and the Philippines (both 8.1 percent) and Thailand (6.5 percent), Hew¬itt Associates reported in its annual compensation survey.



“When people think of what’s happening in India, they tend to think it’s low-end coding work and
basic-level stuff. That’s no longer true.” –Subash Rao, head of HR in India, Cisco

    India’s IT sector is predicted to generate $47.8 billion in revenue in 2007, more than doubling from $21.6 billion in 2004. The great majority of that revenue—an estimated $39.4 billion in 2007—comes from outsourcing contracts, so Indian companies hope that such results will prompt their overseas clients to stay with them even as their services grow in cost and complexity. So far, if revenue growth is any measure, this transition to higher-end work has already begun.


    “The world is slowly waking up to Indian talent,” says Ameet Nivsarkar, vice president of Nasscom. “Over a matter of time, managers have realized the value the Indian workforce can bring to their team, and there is a significant amount of high-end work that is being shared.”


    Business process outsourcer 24/7 Customer is based in Los Gatos, California, but the bulk of its 5,000 employees are offshore. To that company, creating value means using analytical modeling to make predictions about a customer’s buying habits and shaping its own workforce in accord with those findings.


    Vasudevan Bharathwaj, chief marketing officer at 24/7 Customer, describes what a medium-sized online retailer could learn from his company. (Bharathwaj would not name his clients, but think of janitorial supply company ReStockIt.com or New York-based electronics company J&R Electronics.)


    For example, a middle-age man calling Bangalore from Los Angeles around 6 p.m. PST has a higher likelihood of buying the latest computer gadgetry if he’s talking to an Indian cyber-salesman who hails from a small city and whose father was a low-level government bureaucrat. Bharathwaj says 24/7’s statistical analysis shows that young salesmen from smaller cities whose parents did not make a lot of money make better salesmen, especially when the customer is male. He thinks some Americans, who may know nothing about the Indian sales force, may connect in an unspoken way with such a salesman and therefore be motivated to buy from him.


    The goal of using this kind of analysis is to create intellectual property—predicting consumer behavior, for example—that clients can use to generate revenue to be shared with 24/7.


    The drive to create greater value is especially true in product development. HCL Technologies, a New Delhi-based technology company with 43,000 employees worldwide and $1.27 billion in revenue last year, calls its approach “co-sourcing.”


    HCL, which offers pro¬duct engineering, IT services and business pro¬cess outsourcing, tends to keep a low profile. Most of the world doesn’t know that the company’s engineers helped develop Microsoft’s Vista operating system and the computer technology on Boeing’s new 787 Dreamliner. In a typical arrangement, about 1,200 HCL employees work on a networking project for Cisco Systems’ office in Bangalore. In every way except their paycheck, they are Cisco employees.


    Whether the client is in Denver or Delhi, interaction between the two workforces has increased fifty-fold, from quarterly communication to daily interactions, says Vineet Nayar, president of HCL Technologies.


    “The question of the two workforces interacting has become by far the most important element in the success of a project,” Nayar says.


Building soft skills
    Integrating the two workforces, if only by instant messenger, still requires a large measure of communication, analysis and discretionary decision making. As a result, a focus on softer skills has permeated most Indian companies.


    At Wipro Technologies’ 120-acre Bangalore headquarters, a leather-bound copy of Stephen Covey’s The 7 Habits of Highly Effective People stands out against the stack of computer software manuals like a Bible on a newsstand. But the self-help book is there for a reason.


    “Five years ago, our focus was on technical skills, writing code,” says Selvan Dora¬i¬raj, Wipro’s senior vice president for training. “Today, 50 percent of our effort is there, on coding. The rest is on consultant training, management skills, customer-facing skills.”


    Wipro invests 1 percent of its revenue in training. In 2006, the company spent $18 million—or 1 percent of its $1.8 billion in revenue from its global IT services and products division—on training materials and personnel, including seminars that go along with Covey’s book, and 75 courses on technical and management skills. The company has more than 140 teachers, 30 of whom are certified professional behavior analysts. Their job, in part, is to teach employees how to better interact with clients so as to avoid the cultural miscues that can easily metastasize from annoyances into crises.


    “The purpose of this training is to combat the ‘Indian wiggle,’ ” says Gurudutt Rao, a trainer for Wipro. The term refers to the way Indians nod their head side to side to say yes. It’s a gesture that could be construed in the U.S. as shaking one’s head to say no. It is also a larger metaphor for the importance of bridging cultures to communicate effectively.


Desire to make a difference
    The march of Indian companies up the value chain is, in many ways, an ineluctable product of ambition and necessity.


    “There is a lot of fire-in-the-belly syndrome in India today,” says Prabir Jha, global chief of human resources for Indian pharmaceutical company Dr. Reddy’s Laboratories. “Indian companies really want to take on the world.”


    Nowhere is this more evident than in the changing expectations young Indian workers have for their careers.


    “The current workforce is highly ambitious in terms of their career,” Wipro’s Dorairaj says. “If they are not satisfied, they will continue to move on.”


    Money is but one part of that decision. After working nearly four years for a small software company in Calcutta, Saptarshi Roy thought he’d gotten his big break. In 2006, he landed a job with the title of senior software engineer with Wipro Technologies’ Bangalore campus.


    Roy, 29, quickly discovered that his lofty job title didn’t accurately reflect the work he was doing, which was the simple, almost rote computer work of checking for bugs in software that runs the printers, scanners and other hardware of Wipro’s Japanese client Toshiba. It was precisely the kind of process-driven quality-assurance job that has fueled India’s outsourcing boom. But it was boring.


    “The job was very low-end,” he says.


    Six months later, he quit. Roy ended up at Health¬Asyst. This summer he spent a month working at Allscripts’ office in Libertyville, Illinois, near Chicago. During that brief stay, he visited New York City, which, he wrote in an e-mail, “rockz.”


    Allscripts’ decision to outsource was driven by the need to bring products to market faster. From the start, the company saw that the best way to develop products faster was to treat its Indian vendor as a partner.


    “We want to treat them as if they’re part of the company, because if we are paying them to do something they are critical to the company,” says Tullman, who in addition to being CEO of Allscripts is an Oxford University-trained social anthropologist and has traveled to India nine times. “You are never going to get the same level of success as when you treat them as a partner.”


    Clearly, not all companies are looking to India to help develop new products. If all companies want is a less expensive way to manage payroll and other back-office functions, or if they perceive India’s ambition to move up the value chain as a threat to them and their onshore employees, they won’t have the commitment needed to make India work, Indian executives say. Executives who want to successfully outsource to India must be committed to seeing the work mature, and they must prepare their own workforce to move up the value chain alongside their vendors, iGate’s Bhandari says.


    “A successful offshoring effort is when employees grow and the seats they’ve left are filled by their offshoring partner,” he says.


    The conference room has grown quiet. At nearly 10 p.m., the sun has long since set on this muggy May night. The incessant honking of cars and the 100-degree heat outside have finally begun to dissipate. Then Ritu Arora, a divisional head of learning and development at iGate, sitting next to Bhandari, explains that point further. With a smile on her face, she aims to convert the skeptical: American executives who commit to India, who see the Indian workforce as an extension of one’s own, would reap the greatest rewards for their risk.


    “Then the team here feels a critical part of the work,” she says. “We feel that we matter, that we are recognized, and that the work we do makes a difference.”


Workforce Management, August 20, 2007, p. 1, 22-32 — Subscribe Now!

Posted on August 13, 2007July 10, 2018

DOL Sets $100-a-Day Fine for 401(k) Company Stock Snafus

Companies that offer their own stock as an investment option in their 401(k) plans have been put on warning by the Department of Labor: If they fail to let workers know when they are eligible to sell their company stock holdings, they could be fined as much as $100 a day per violation.


The regulations the Department of Labor published in the Federal Register on Thursday, August 9, stem from last year’s Pension Protection Act, which made it easier for workers to move their retirement savings out of company stock holdings and into other investments in the 401(k) plan.


In the past, companies often put strict limits on 401(k) participants’ ability to diversify out of company stock. The PPA said that employees who invest in company stock with their own contribution to the plan can switch out of it at any time, while employees who acquire company stock from the company’s contribution can diversify out of it once they’ve achieved three years of service.


Employers are required to give workers 30 days’ notice of the point at which they’re eligible to diversify out of company stock, and the department’s regulations put some teeth into that requirement by setting the fine of as much as $100 a day per violation.


Enron’s collapse illustrated the dangers of putting too much of one’s retirement savings into an employer’s stock, and that message seems to be getting through to workers. The latest look at 401(k) plan activity by the Employee Benefit Research Institute and the Investment Company Institute found that employees’ holdings of company stock fell two percentage points in 2006, to 11 percent; that compares with the 1998 peak in company stock holdings of 18.6 percent.


The regulations take effect October 9.


Filed by Susan Kelly of Financial Week, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

Posted on August 10, 2007July 10, 2018

Dear Workforce How Do We Persuade Our Management That the HR Function Could Offer Strategic Value to the Company

Dear Looking at the Big Picture:



Strategic HR is more an evaluation of the senior HR staff’s performance rather than a checklist of items. Pre-selling your management on the popular-but-vague idea of strategic HR is likely to prove less effective than repeatedly demonstrating that you have a strategic approach to your role.

  • How well do you understand your company’s business economics?
  • Do you read the data and business publications (not HR publications) that your top management reads and relies on, so they are not frequently bringing you up to speed–or worse, leaving you out of the discussion?
  • Do you show awareness that HR is a cost center, not a profit center, and constantly and conspicuously seek returns on the investment your company makes in its HR function?
  • Do you look for ways to keep your highest producers at the company, and let your lowest producers leave and go to work for your competition?
  • Do you resist adding faddish, low-value benefits and instead fight for important benefits that have greater impact on employee loyalty, motivation and retention? (Read more about the negative reactions when Hewlett-Packard slightly reduced the number of telecommuters in its huge workforce.)

Checklists, unfortunately, are typical of how senior management often view the HR function. Although it may serve some purpose, a checklist seems more likely to address effective HR than strategic HR. Over time, your executive management will form its opinion of how strategic your HR function is from the dozens of examples that result from your analytical thinking, your overall business sense, your orientation toward future company goals, and the quality, not quantity, of your initiatives. Good luck as you proceed down this path.

SOURCE: Harold Fethe, MindSolve Technologies, Gainesville, Florida, July 21, 2006

LEARN MORE: Please read Strategic Human Resources Actions for some proven metrics.

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.

Posted on August 10, 2007July 10, 2018

Dear Workforce How Do We Know What Applicants in India Are Looking For

Dear Not a Mind Reader:



It is difficult to understand what candidates are thinking before any interview, regardless of culture. However, armed with the applicant’s résumé and some market knowledge, you can come to the initial meeting with an understanding of how to move forward.

First is the market. Cash is king in India at the moment, especially in engineering. It is important to know the type of package your company will offer before negotiations on salary begin. Many companies have instituted retention bonuses paid out after years one, two and three. Most are equal to 50 percent to 100 percent of annual salary.

Second is the employee’s international background. If the employee has previously worked for a multinational, she/he should have a baseline understanding of multicultural communication. But do ask about their orientation to international teams. For candidates who have not previously worked for multinationals, it will be important to elicit, in the interview, the candidate’s views/perceptions of working on a multicultural team. Outside of technical skills, the ability of a candidate to lead a local team, but communicate and partner with the company’s U.S .corporate office is going to be seminal.

Third is the personal relationship. Professional and personal relationships are intertwined in the Indian office setting. It is quite common to be familiar with colleagues’ personal background. It is recommended that the functional and hiring teams include a “get-to-know-you” aspect as part of the recruitment process. In general, Indian culture builds heavily on group dynamics, so strengthening the personal relationship with the corporate office is key.

Taking these three points into consideration should help you formulate a recruitment strategy for the interviews.

SOURCE: Jeremy Hollister, Watson Wyatt & Co., San Francisco, July 19, 2006.

LEARN MORE: Please read What Role Do Job Descriptions Play When Recruiting Top-Notch Employees?

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.

Posted on August 9, 2007July 10, 2018

DHS Bolsters Enforcement of Employers With No-Match Rule

Major immigration reform legislation may be dormant, but the regulatory process is about to bloom with new—and potentially costly—demands on employers to ensure that their workforces are legal.


Under a pending rule from the Department of Homeland Security, companies will have to take steps upon notice from the government to resolve discrepancies in workers’ tax information that they previously could ignore.


The clock would start ticking when companies receive a letter from the Social Security Administration indicating that employees’ names or Social Security numbers on tax forms don’t match federal records.


If work authorization or identity can’t be confirmed within about two months, companies would have to fire employees or face steep fines.


Currently, an employer is not compelled to do anything with what are called “no-match” letters. The document states explicitly that no assumption should be made about a person’s legal standing.


In 2005, 8.1 million letters were sent to workers and 1.5 million to employers if a home address couldn’t be found for the employee.


In the new approach, which could be implemented within months, a company’s failure to act on a no-match letter is effectively a violation of immigration law.


“They’ve turned the presumption completely around,” says William Manning, a partner at Jackson Lewis in White Plains, New York.


The agency has taken another step in its renewed efforts to crack down on illegal employment. Although the rule was proposed more than a year ago, it is being put into effect now that immigration legislation has died on Capitol Hill.


“It’s a strong tool to use when they’re conducting an audit or they’re undertaking a work-site enforcement action,” says Montserrat Miller, a lawyer at Greenberg Traurig in Washington.


The agency uses the same metaphor but says that it is giving companies a tool to better understand no-match procedures. It also intends to hold them accountable for hiring practices.


“If they continue to choose not to follow the law, there will be sincere and severe penalties,” says Laura Keehner, a DHS spokeswoman.


One problem with the DHS initiative, according to employer advocates, is flawed government databases. Discrepancies occur in about 4 percent of the 250 million earnings reports that businesses send annually to the Social Security agency, according to the Government Accountability Office.


About 5 percent to 10 percent of the U.S. workforce could get caught in the net, including legal workers, Manning says.


“If the government goes around disenfranchising those people, you could have a recession or depression,” he says.


Food services and processing and the hospitality and construction industries would be hit hard, industry representatives say.


John Gay, senior vice president for government affairs and public policy at the National Restaurant Association, says that millions of workers could be removed from the labor market.


“You could see doors closing on businesses,” he says.


The homeland department is not seeking to cause economic disruption, but it does want to shut off the “jobs magnet” that fosters illegal immigration—a move called for by many members of Congress.


“It’s part of the administration’s effort to show they’re willing to enforce the laws we currently have,” says Lynn Shotwell, executive director of the American Council on International Personnel.


Under failed immigration proposals, bitter crackdown medicine would have been sweetened by establishing legal channels for bringing in foreign workers.


“We warned against doing this—enforcement without reform,” Gay says.


—Mark Schoeff Jr.

Posted on August 7, 2007July 10, 2018

Curbing Runaway Discrimination and Harassment Costs

Employers, general counsels and human resource professionals who have been through litigation know the cardinal rule of employment law: “Winning isn’t everything. You still owe attorneys’ fees.”


    An employer called upon to defend a charge of discrimination before a human rights agency such as the federal Equal Employment Opportunity Commission or a state equivalent will pay attorneys’ fees ranging from $2,500 to upwards of $10,000 for preparation of a response. Defense of a lawsuit will cost even more—typically $35,000 to $100,000, depending on the number of plaintiffs, types of claims, number of witnesses and exhibits involved and, of course, the adversarial level of the opposing party. Your lawyer will expect to be paid, win or lose.


    Adding insult to injury, federal courts have begun to allow the EEOC to continue pursuit of discrimination claims for employees who have already settled their claims through mediation or arbitration. One federal court compelled a Michigan company to pay the EEOC $500,000 after a group of former employees settled their claims for race discrimination.


    Faced with the prospect of endless rounds of attorneys, attorneys’ fees, costs, employee downtime and emotional disruption, employers, general counsels and HR professionals have become resourceful in developing ways to reduce or even avoid employee claims and the subsequent expenses. Strong, closely enforced anti-harassment policies, statute-of-limitation waivers, employment agreements requiring mandatory arbitration of employment disputes and “anti-discrimination bonds” are all tools used by employers to curtail the runaway costs of discrimination and harassment. The most useful tool of all may soon come into play as well. More about that later.


    Sexual Harassment Policy and Training: With the 1998 decisions in Burlington Industries Inc. v. Ellerth and Faragher v. City of Boca Raton, the U.S. Supreme Court provided employers with a road map to reduce liability for harassment. Implementation of a strictly enforced anti-harassment policy with adequate complaint procedures allows employers to avoid liability altogether. And the big-ticket item, punitive damages, can be avoided completely in those cases where employers make good-faith efforts to prevent discrimination through education and training. According to the court, “[T]he purposes underlying Title VII are … advanced where employers are encouraged to … educate their own personnel on Title VII’s prohibitions.”


    At least three state legislatures have answered the Supreme Court’s call: Connecticut, Maine and California have statutorily mandated training on the prevention of sexual harassment, requiring a minimum amount of training for supervisors. In Maine, all employees are required to have such training.


    When compared with the price tag for defending a sexual harassment claim or lawsuit, a simple dollars-and-cents analysis of the cost of developing a policy and training employees makes this decision a no-brainer.


    Statute-of-Limitation Waivers: Limiting the time in which an employee may file a discrimination claim is not a new idea, but such an agreement, carefully crafted, can be the impetus for either a quick resolution of a complaint or ultimate dismissal of a plaintiff’s case because of the shortened statute of limitations. In this case, time is money, and early resolution or dismissal almost always reduces time and expense for an employer.


    Mandatory Arbitration: Mandatory arbitration of employment disputes can also be extremely effective at reducing both time and costs of litigation. The EEOC has mediated more than 50,000 cases since 1999, and more than 6,500 of those mediations resulted in non-monetary settlement.


    Most employers are subject to the Federal Arbitration Act. The U.S. Supreme Court has held that employment arbitration agreements are enforceable under that law, and that courts can compel arbitration. Some state courts (Colorado is one example) have chosen to follow the federal court lead and often resolve employee disputes in favor of arbitration.


    Another benefit of employment arbitration agreements is that in some states, employees are not required to sign the agreement in order for it to become binding. In one recent case, a New Mexico federal court held that despite the fact that the employee never signed nor objected to the employer’s arbitration agreement, the employee’s continued appearance at work after the agreement’s effective date constituted her assent to the terms of the agreement.


    Benefits arising from the implementation of mandatory arbitration agreements include the employer’s ability to manage discrimination issues internally, in less time and with lower cost. However, before implementing a mandatory arbitration agreement, employers should check both federal and state law to ensure that such an agreement will be beneficial, given the employer’s geographical location and the type of work performed.


    Anti-Discrimination Bond: This idea, suggested by Anne Marie Knott, assistant professor at the Olin School of Business, Washington University at St. Louis, has the possibility of reducing employment litigation. According to Knott’s concept, the employee has the option of contributing to an individual savings account much like a 401(k). If the employee sues the employer, the employee forfeits the funds in the account as an offset to the expenses incurred by the employer in the subsequent litigation.


    This seems to be a classic instance of putting your money where your mouth is and underscores the creative measures businesses seem to be willing to take to reduce what they perceive as unnecessary expenses. No comment or legal opinion from me, however, on the legality or advisability of this action.


    Recovery of Attorneys’ Fees: Here’s what would really make a difference for employers: Allow them to recover attorneys’ fees and expenses when they win. Given the Supreme Court’s recent undeniable swing to the strict construction of federal laws, it may be time for a review of two federal statutes: 42 U.S.C. § 1988 and its Title VII counterpart, 42 U.S.C. § 2000e-5(k). These two statutes provide that in federal civil rights actions, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”


    The 1978 U.S. Supreme Court, in the case of Christianburg Garment Co. v. EEOC, made a distinction between a prevailing defendant and a plaintiff. The court did not apply the plain reading of the statute (“prevailing party gets fees”), but determined that a prevailing defendant could recover attorneys’ fees only “upon a finding that the plaintiff’s action was frivolous, unreasonable or without foundation, even though not brought in subjective bad faith.”


    The 2007 Supreme Court, however, may likely differ. Consider the two very different outcomes of two recent employment law decisions.


    In Burlington Northern & Santa Fe RR v. White, the court seemed purely “pro-employee,” looking at the statute itself to define an adverse employment action. The court ignored previous court rulings interpreting that same statute and instead relied on its plain language.


    But in the same term, the Supreme Court flipped 180 degrees from its pro-employee decision and gave us the pro-employer case of Ledbetter v. Goodyear Tire & Rubber Co. Again, the court ignored past interpretations of the statute, and made its determination regarding the statute of limitations for filing a charge of discrimination on the strictly construed language of the statute.


    As Burlington and Ledbetter illustrate, it appears as if the current Supreme Court will look at the plain meaning of employment statutes rather than other earlier court decisions interpreting the text. In Ledbetter, the court concluded that “[u]ltimately, experience teaches that strict adherence to the procedural requirements specified by the Legislature is the best guarantee of evenhanded administration of the law.”


    The federal statutes, 42 U.S.C. § 1988 and 42 U.S.C. § 2000e-5(k), make no distinction as to whether the “prevailing party” is plaintiff or defendant, and courts have ignored both statutes’ plain language with regard to the award of attorneys’ fees. Now may be the time for this issue to be addressed by the nation’s highest court. With the prospect of paying fees and costs to the company it just sued, plaintiffs’ attorneys may be a little more reluctant to file a lawsuit when the facts and law are not clear, and employees may be more inclined to take advantage of other methods of dispute resolution such as internal grievance procedures or arbitration.

Posted on August 7, 2007July 10, 2018

Fine-Tuning Pay for Performance

At first glance, the Dow Chemical Co.’s effort to use the lure of money to improve patients’ health and reduce costs seemed like a roaring success. When the three-year pilot program in South Charleston, West Virginia, ended in 2004, the company calculated that preventing illnesses from spiraling out of control saved it $1 million.


    But no sooner had the company distributed the money—a quarter-million dollars each spread among participating employees, doctors, a health management company and Dow Chemical itself—than the firm decided to cancel the program.


    “There were difficulties in the whole system,” says Gary Billotti, leader of the Midland, Michigan-based corporation’s health and human performance management initiative. “We couldn’t expand it at that point, given other priorities and other projects.”


    Chief among the problems was communicating with employees in the program—who numbered 1,000 at the time—their dependents and retirees. Many of them did not use the Internet, where most of the program’s information was located.


    Dow ran into problems getting doctors accurate and timely information about their patients because the level of health information technology varied among doctors. The company also downsized in the state, thereby diminishing the power it had as a health care purchaser to change physician behavior.


    All told, the failure of the Dow effort to go from pilot project to prime time reflects the challenges individual employers face trying to create sustainable change in a fragmented health care market.


    Dow’s program also provides lessons to other employers interested in getting involved with pay-for-performance projects under way today. The most notable efforts are being coordinated by Bridges to Excellence, a nonprofit organization supported by employers, health insurers and doctors.


    The goal of pay-for-performance programs is to change the health care system so that doctors get paid not for the services they provide but for the outcomes they produce—healthy patients.


    Some employers feel pay for performance is deeply flawed in principal.


    “From the purchaser perspective there has historically been resistance to paying [doctors] to do something you thought you were paying them to do anyway,” says John Miller, executive director of the Mid-Atlantic Business Group on Health. “But companies are becoming more pragmatic and they understand that it will take some investment to reform the payment method that has historically been used.”


    What they want is a program that is easy to administer. That was the main hurdle with Dow.


    “Logistically and administratively, it takes effort,” Billotti says. “And it took more effort than we had originally anticipated.”


    The appeal of a program like Bridges to Excellence is that employers don’t have to get bogged down in defining the rules of the game. The group has four areas of focus right now: diabetes management, heart disease, chronic back pain and promoting the use of health information systems.


    More than 3,000 doctors in 12 states have been paid $7.6 million for improving the health of their patients. Though there are other pay-for-performance programs being run by health insurers, one of the advantages of Bridges to Excellence, participants say, is that it offers a widely accepted standard for assessing patient care and one way to report their patients’ health status.


    “We hear from the physician community that there’s too much clutter out there. They can’t maintain the administrative burden of reporting if there are five different methodologies of assessing performance and rewarding results,” Miller says. “Bridges to Excellence makes it easier for doctors.”


    One of the major differences between Dow’s effort and those using the Bridges to Excellence model is that payments are made only to doctors. And unlike with Dow, payments are based on the health improvement of patients.


    In the Bridges to Excellence diabetes program, for example, patients must meet five measures to be counted toward a doctor’s overall score. Patients must have a blood sugar count that indicates their diabetes is under control; LDL—or “bad” cholesterol—level must be below 100; blood pressure must be less than 130 over 80; patients must not smoke; and patients who are 40 or older must take an aspirin every day. Twenty percent of a doctor’s diabetes patients must meet the criteria in order to receive a cash reward.


    In the Washington, D.C., area, the Bridges to Excellence program, “Physician Office Link,” focuses on the use of information systems to improve patient care.


    The program aims at introducing electronic medical records and electronic prescribing. It encourages doctors to use systems to track patients with chronic illnesses, health risk assessments and disease management programs to help patients navigate the health care system.


    The payments so far have totaled $2.6 million. They max out at $20,000 per physician and are meant to offset the cost of purchasing a medical records system. But it remains to be seen whether electronic records improve people’s health.


    “On a personal level, I feel that it works,” says Ann Doyle, a nurse who is helping to administer the Bridges to Excellence program for CareFirst Blue Cross Blue Shield, which represents the Mid-Atlantic region and is funding the effort. “We’re waiting to see whether the data verifies that.”


    Local employers are waiting too. So far none of the employers in the Mid-Atlantic Business Group on Health have funded the CareFirst-sponsored program, even though they may benefit from it.


    One reason, Miller says, is that each of his member companies represents a small slice of the overall market, which is a problem Dow faced when it downsized in Charleston. This makes it hard to convince a CEO that the company’s investment would be money well spent.


    “For that reason we think it makes more sense for this stuff to be implemented by the managed care organization,” Miller says.


    Together, the Mid-Atlantic Business Group on Health may make a difference. On June 21, 18 of its largest employers, representing 400,000 insured lives, met to consider funding the program.


    Dow, meanwhile, has taken the lessons from West Virginia and moved on. The company is developing a consumer-driven health care plan that covers an expanded array of preventive medicine that is expected to be available in 2009. The company is also involved in efforts to promote the use of health information technology in Michigan.


    Those supporting employer efforts still believe purchasers have the power to change the market, even if much of the return on investment has not yet been measured.


    “They are doing it on faith, but there will be an ROI,” says Linda Davis, a consultant for the Bridges to Excellence program run by the Buyers Health Care Action Group, a local business group in Minneapolis. “Employers need to start stepping up to the plate and being involved in changing the focus to quality of care rather than quantity.”

Posted on August 7, 2007July 10, 2018

Appeals Court Says 401(k) Participants Can Sue Even After Cashing Out of Plan

Participants in 401(k) plans have the right to sue plan administrators under ERISA even if the participants have taken all of their money out of the plan, according to a recent ruling from the 3rd Circuit Court of Appeals.


The decision “cleared up an area where there was some ambiguity,” said John Nixon, vice chairman of the employment services group in the Philadelphia office of law firm Wolf Block.


The 3rd Circuit reversed a lower court’s dismissal of Howard Graden’s lawsuit against Conexant Inc. on the grounds that Graden’s cashing out of the plan meant he had no standing to sue.


“The lower court followed what everyone understood the law to be,” Nixon said. “You had to have an [401(k)] account balance to have standing.”


Graden participated in Conexant’s 401(k) until October 2004, investing only in the company stock fund. At the time he cashed out, Conexant’s stock had fallen to $1.70 from a 52-week high of $7.42 in March 2004.


He sued, alleging that Conexant’s pursuit of a risky merger was to blame for the stock drop. Conexant argued that since Graden had cashed out of the plan, he was no longer a participant and did not have standing to sue.


But the 3rd Circuit’s decision notes that ERISA entitles 401(k) plan participants “not only to what is in their accounts, but also to what should be there given the terms of the plan and ERISA’s fiduciary obligations.”


“From this, it is not difficult to conclude that Graden has standing as a plan participant,” the court said, noting that if his lawsuit succeeds, it “will restore assets to the plan that are allocable to Graden’s account, and he will then get a distribution from that restored account.”


“When determining participant standing under ERISA, the relevant inquiry is whether the plaintiff alleges that his benefit payment was deficient on the day it was paid under the terms of the plan and the statute,” said the panel’s decision. “If so, he states a claim for benefits, which, if colorable, makes him a participant with standing to sue.”


Both the Department of Labor and AARP filed amicus briefs supporting Graden, while the National Association of Manufacturers filed an amicus brief supporting Conexant.


Nixon said the decision will create some challenges for companies that sponsor 401(k) plans. When working with plan sponsors, “We try to always draw as small a circle as possible around possible claimants,” he said. “Now, even if you encourage them to take their money out, they’re still a possible claimant.”


The decision also raises issues with regard to the administration of 401(k) plans, and especially record keeping, Nixon said. “If in fact this case becomes the rule of the day, people are going to have to re-examine their service provider agreements to see, post-termination, to what degree the service provider has to retain records for them.”


But he noted that the Supreme Court is due to consider a case, LaRue v. DeWolff, that raises the same issue about the standing of plan participants after they cash out of 401(k) plans. Nixon predicted that if the Supreme Court rules on this issue, “they will read the term ‘participant’ literally and basically restore the status quo.”


Filed by Susan Kelly of Financial Week, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

Posted on August 6, 2007July 10, 2018

Average 401(k) Posts Fourth Straight Increase; Total Still Too Low to Offer Safe Retirement

The average 401(k) account balance posted an increase for the fourth year in a row in 2006, but the cash totals in those accounts are still too low to provide a decent retirement for many workers.


Still, the annual report on 401(k) plan activity released last week by the Employee Benefit Research Institute and the Investment Company Institute suggests that plan participants are becoming savvier investors.


For workers who have participated in a company’s plan consistently at least since 1999, the average account balance rose 17 percent, to $121,202 in 2006 from $103,952 in 2005.


“The discipline of saving through a 401(k) plan continued to pay off for these 401(k) plan participants,” said Jack VanDerhei, co-author of the report and an EBRI fellow.


Average balances get bigger as workers get older: Employees in their 60s had an average account balance of $157,727 in 2006, up 9.3 percent from $144,269 in 2005, while those in their 20s ended the year with an average balance of $28,248, up 27 percent from $22,236.


VanDerhei cautioned against reading too much into the information on account balances, since the data, provided by record keepers, show only what workers have accumulated at their current job and not assets they may have rolled over into IRAs or left with previous employers.


When asked whether workers were saving enough, VanDerhei cited a study that he and Sarah Holden of ICI conducted in 2002 that showed 401(k) accumulations would replace one-half to two-thirds of workers’ pre-retirement income. The automatic enrollment encouraged by last year’s Pension Protection Act could improve those results, VanDerhei said.


The Center for Retirement Research at Boston College released a somewhat bleaker analysis last week that indicated 43 percent of households will not have enough income in retirement to maintain their standards of income.


VanDerhei noted that the Center for Retirement Research analysis looked at all households, many of which do not have access to a 401(k) plan, while the EBRI/ICI report only covers 401(k) plan participants. “That emphasizes the importance of getting people into 401(k) plans,” he said.


According to the EBRI/ICI report, about two-thirds of 401(k) assets are invested in stocks and about a third in fixed-income instruments like stable-value, bond and money-market funds, a breakdown that has changed little over the past 11 years.


The data show, though, that participants are moving away from putting too much money in company stock. Allocations to company stock declined two percentage points in 2006, to 11 percent. Assets invested in company stock have been falling since 1999, after peaking at 18.6 percent in 1998.


The EBRI/ICI data also show that plan participants are making more use of balanced funds, which include stocks and bonds, a category that encompasses lifestyle and lifecycle funds. Such balanced funds held 24 percent of the account balances of recently hired participants in their 20s at the end of 2006, compared with 19 percent in 2005 and 7 percent in 1998.


The EBRI/ICI analysis is based on data on almost 54,000 401(k) plans with 20 million participants and $1.2 trillion in assets, about 46 percent of the total $2.7 trillion held in such plans.


Filed by Susan Kelly of Financial Week, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

Posted on August 6, 2007July 10, 2018

Consumerism in Health Care A Reality Check

Employee health care in America has been a something of a study in false panaceas. In the post-World War II age of prosperity, our original model––indemnity plans paid by employers––prevailed for three decades, until cost creep and utilization began to redden company ledgers. Then came the rise of the HMOs, posting steady cost-control success until savings were eroded by double-digit health-premium inflation. It proved that the HMO solution, despite its advantages, was all too vulnerable to market forces.


    The recent era of cost-shifting—which was initially, though begrudgingly, tolerated by employers and employees who conceded that the burden of health care inflation must be shared—is proving an unsustainable solution. Indeed, neither side of the cost-shifting transaction ever viewed it as the ultimate answer. Now, at the start of a new century, there’s hope that health care consumerism and account-based consumer-directed health plans will generate a wave of personal responsibility on the part of employees for benefits, controlling costs and helping preserve the fraying health care covenant.


    It’s no panacea, of course––not yet. And it’s hard to say how it will evolve in the current environment, as presidential hopefuls and Congress debate the ideas of universal health care and single-payer solutions. But we know this consumerist trend is at least real. A survey conducted annually by Mercer Health & Benefits (including nearly 3,000 employer participants in 2006, statistically projectable to all employers with 10 or more employees) showed that the percentage of all surveyed employers offering a consumer-directed health plan based on either a health reimbursement account or a health savings account tripled in 2006, from 2 percent to 6 percent, as small employers began adapting the new plan type in significant numbers for the first time.


    Meanwhile, growth was strong among large employers, with consumer-directed health plan offerings rising from 5 percent in 2005 to 11 percent among employers with 500 or more employees, and from 22 percent to 37 percent among jumbo employers (20,000 or more employees). Foreshadowing the rising consumerism tide, when asked what types of plans they expected to offer five years from now, 61 percent of employers with 500 or more employees indicated that they’d be offering one or more consumer-directed health plans.


    More important, perhaps, the increased consumerism efforts and consumer-directed health plan adoption may point the way to greater cost sustainability. Consumer-directed health plans delivered substantially lower cost per employee than either preferred provider organizations or HMOs in 2006. But like any hopeful trend in the early stages of success, the rise of consumerism in health care demands a reality check, and already it’s evident that a parallel trend is threatening to slow the momentum of positive change––for now, let’s call it “CDH vs. CDH.”


    As observed in the above-cited annual research and in extensive client experience, there’s CDH (cost-driven health care), and then there’s CDH (true consumer-directed health care). Cost-driven health care is actually a cost-shifting effort masquerading as consumerism, and this less than sustainable solution may begin with a benefits manager under pressure from executives to “do consumer-directed health care” for the purpose of immediate cost savings.


    As a result, an HSA-compliant plan typically is added to the benefits menu along with current plan offerings, but with little or no company contribution to the HSA, little or no investment in tools, information or support for participants in the HSA, and no long-term education or communication strategy for the program.


    Predictable results can include very low adoption by workers or, if the offering is forced, significant employee relations issues. Cost-driven health may also foster poor choices or unintended health consequences for those in the program. There may be a short-term dip in company costs achieved through cost shifting to workers, followed by a longer-term cost-increase trend driven by poor health and lagging productivity issues.


    As for genuine consumer-directed health care, it’s precisely the CDH we mean when we talk about the rise of consumerism. But it requires more effort, energy and involvement by all stakeholders to successfully launch and sustain. For plan sponsors, that means such commitments as adopting a documented multi-year health strategy; adding account-based or consumerist health plans as significant––if not the only––options over time; and making meaningful contributions to any health account so that most of the participants can reasonably expect to manage their health with the funds provided.


    It also demands a concerted effort to provide support, tools and information to help employees become more involved and informed health care consumers. And all of this needs to be wrapped in a compelling communication package with ongoing educational elements that continue long after implementation.


    That’s a tall order, requiring a level of discipline from all stakeholders that was never required under the indemnity or HMO models, and which employees have struggled with in the cost-shifting era. But with consumer-driven health care done right, positive behavior changes, improved companywide health status and cost savings can often be seen over time. And even then, employers need to monitor the program, adjust elements as necessary and guard against unintended consequences such as care avoidance or a disproportionate impact on lower-paid or ill workers.


    No, a consumerist panacea will be a hard-won victory, fought not only in the trenches of innovative programs to create involved and informed consumers, but also on the battlefields of good benefit and health-plan management basics, vendor negotiations, network discounts and access, disease management programs, and health assessment and improvement efforts. But amid all the uncertainties and complexities that define the health care landscape in today’s increasingly global, fiscally fragile corporate universe, the advent of consumerism sounds a note of sense and sustainability. Its success calls for a commitment to consumer-driven health care––with no illusions.

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