Fixing the Health-
Care Coverage Mess

If you’ve been following recent events in Washington, DC, it appears that Congress is gearing up for a major shift in policy on health-care coverage. Ideas from both legislative bodies appear squarely focused on small businesses and the self-employed.

The newest proposal comes from Senators Dick Durbin (D-Ill.), Olympia Snowe (R-Maine) and Blanche Lincoln (D-Ark.). As they have noted, more than half of the nation’s uninsured are self-employed, work for a small business, or are a dependent of someone who works for a small business. Their mantra is “Fix small-business coverage, and you fix a large part of the health-care problem.”

Labeled the Small Business Health Options Program (SHOP), their legislation has three major components:

• Allow small businesses to group together across state lines to spread risk and lower premiums
• Provide tax credits to help offset contributions to employees’ coverage
• Don’t let insurance companies tag people with a rating based on health status, which penalizes those with health issues and can hike rates across companies where one employee fell ill

“This legislation will finally level the playing field for American small businesses and the self-employed and allow them to pool together nationally to receive a host of new, affordable, and quality coverage options,” Senator Snowe said in a statement.

Is it enough to make a difference to small businesses, like eyecare professionals? For now, the question will go unanswered. However, the proposal suggests a $1,000 credit per employee, per year, or $2,000 for family coverage, if business owners cover 60 percent of their employees’ premiums. There’s an unspecified bonus for those businesses that cover more than 60 percent. Under the plan, self-employed individuals would get an $1,800 annual tax credit, or $3,600 for families, to go toward health insurance.

While the proposal doesn’t address the ever rising cost of health-care coverage, it is legislation worth following as small business owners and self-employed ECPs continue to deal with these issues in the coming months.

Hedley Lawson brings over 25 years of optical industry experience to Jobson Medical LLC. For over 10 years, he has been a contributing editor to VM, most recently as writer of the monthly column "Business Essentials." He is the Contributing Editor of VM's E-Newsletter Business Essentials. Contact Business Essentials with questions or comments.

FMLA Regulations

Q: What is the obligation of the employer to place an employee who returns to work (within a year) from leave under the Family & Medical Leave Act (FMLA) in the same or a similar position he or she held prior to leave?

A: An employee's right to job restoration is one of the fundamental benefits of the FMLA. Generally, an employer must restore an employee returning from FMLA leave to the same or "equivalent position," that he or she held before leaving the job, with respect to working conditions, pay, benefits, and responsibilities.

The Department of Labor’s (DOL) regulations on the FMLA explain that an “equivalent position” is one that is “virtually identical” to the employee's former position, involving “substantially equivalent skill, effort, responsibility, and authority.”

However, not all employees are guaranteed job restoration upon return from FMLA leave.

For example, an employer is not required to restore a “key employee” (i.e., a salaried employee whose salary is within the top 10 percent of all the organization's employees working within 75 miles of the employee's work site) to the same position held prior to FMLA leave if doing so would cause “substantial and grievous economic injury” to the employer's operations.

Although the FMLA does not afford key employees job-restoration protection, an employer may not generally deny the key employee's FMLA leave request. There is no precise test to determine whether a substantial and grievous economic injury or hardship exists as a result of job restoration.

Although no precise test exists, guidance is available to make this determination. For instance, the DOL's regulations explain that considerable factors may include an employer's ability to do without the employee on a temporary basis, cost of replacement and threats to the economic viability of the company.

In addition, courts have held that minor inconveniences and costs incurred by an employer in the normal course of business do not constitute substantial and grievous economic injury. In large part, employers must keep in mind that justification of the key-employee exemption may not be based simply on the threat of substantial and grievous economic injury that may result from the employee's absence, rather the focus is on whether the employee's restoration would cause such an injury.

However, employers who anticipate using the key-employee exemption must make sure that they notify the key employee in advance of his or her status as a key employee, and also explain to the key employee that restoration may cause substantial and grievous harm, and therefore, restoration may not or will not occur.

In addition to the key-employee exemption, employers are not required to restore any employee to the same or virtually similar position when:

1) The position no longer exists;

2) The employee is no longer qualified for the position;

3) The returning employee is unable to perform an essential function of his or her position at the conclusion of FMLA leave;

4) The employee's shift has been eliminated or overtime is decreased;

5) The employee was hired for a specific term or for a specific project and the term or project is over or;

6) The employee fraudulently obtains FMLA leave.

In summary, employers are generally required to reinstate an employee returning from FMLA leave to the substantially same position held prior to leave; however, the law provides employers specific exceptions to the restoration obligations.

Nonetheless, in instances where an employer is faced with the decision of either restoring or denying restoration, make sure it does so only after it has complied with not only the FMLA notice obligations, but also any additional compliance responsibilities under the ADA or other federal or state statutes.

If you have a question or issue for one of our experts, contact Business Essentials.

—Hedley Lawson, Jr.

12 Questions to Measure Employee Engagement

Five years ago, The Gallup Organization began creating a feedback system for employers that would identify and measure elements of worker engagement, generally tied to the bottom line—such as sales growth, productivity and customer loyalty.

After hundreds of focus groups and thousands of interviews with employees in a variety of industries, Gallup came up with the Q12, a 12-question survey that identifies strong feelings of employee engagement. Results from the survey show a strong correlation between high scores and superior job performance. Here are those 12 questions:

• Do you know what is expected of you at work?

• Do you have the materials and equipment you need to do your work right?

• At work, do you have the opportunity to do what you do best every day?

• In the last seven days, have you received recognition or praise for doing good work?

• Does your supervisor, or someone at work, seem to care about you as a person?

• Is there someone at work who encourages your development?

• At work, do your opinions seem to count?

• Does the mission/purpose of your company make you feel your job is important?

• Are your associates (fellow employees) committed to doing quality work?

• Do you have a best friend at work?

• In the last six months, has someone at work talked to you about your progress?

• In the last year, have you had opportunities at work to learn and grow?

Back to Top

Allow for Work-Life Balance to Retain Valuable Employees

Today’s employee believes a work-life balance is an essential part of overall job satisfaction. So, if your company doesn’t allow for this balance, you’re likely to see a lot of people jumping ship.

But towing the line between a successful flexible work arrangement and a free-for-all where employees take advantage of the privilege can be difficult.

Here are 4 keys to ensure a successful flexible work arrangement:

1. It must make sense. Before taking action, you need to be sure any alternate scheduling arrangements make sense for your company. Simply put: Some companies can’t afford to change their schedules. Fortunately, most can. Once you’ve established that a flexible schedule can work, it’s imperative that employees understand it’s a privilege, not a right. Set up criteria that workers must meet in order to take advantage of your flexible scheduling.
2. Think retention and work with the individual. If a great worker is seeking to alter their schedule because of a personal situation, it’s best to work with him or her. Sticking to the letter of the law when it comes to scheduling issues often makes workers feel as if they’re just another part of the herd, rather than a valued individual. On the whole, it’s better to have your best employees work less than not work at all. Retaining top talent today means making sure employees feel their individual needs are being met.
3. Have HR and managers work together. Whether it’s HR execs monitoring the managers who determine which employee can work a flexible schedule, or HR creating the eligibility on its own, it’s important the two departments work together. Including HR execs in the mix gives managers a perspective on how the plan will help your company.
4. Make workers reachable. Just because certain employees aren’t in the office during traditional working hours, doesn’t mean they shouldn’t be reachable during those hours. This means equipping these staffers with laptops, PDAs, cell phones or anything else they need. Just don’t go too far when placing demands on when your employees should be available. Managers should clearly define when workers are expected to be reachable.

Resolving and Avoiding Conflicts in the Workplace

When various people and personalities come together in the workplace, chances are good the result is not always a harmonious mix. As a manager and business owner, it is your responsibility to create a work environment where employees can thrive. Let’s face it, the ultimate goal is to have a productive, efficient work force and conflicts and the power struggles that sometimes ensue, don’t promote good performance and can often lead to high turnover rates. Below are a few basic tips that you can use in order to deal with and ultimately avoid conflicts in the workplace. 

Facts about Workplace Conflict

• Differences of opinion or viewpoint are normal.

• Unhealthy conflict begins when considerate dialogue stops.

• Unhealthy conflict destroys good will and provokes defensiveness, anger, and resentment.

• Unhealthy conflicts are destructive in organizations.

• It’s important to manage everyday differences.

• The most important partnership in business is the employee/manager relationship.

Symptoms of Supervisor/Employee Conflict

• Employee avoids the supervisor.

• Supervisor avoids the employee.

• Electronic messaging trumps face-to-face meetings.

• Communications are perfunctory and mechanical.

• Communications are laced with low trust and tension.

Conflict Avoidance vs. Conflict Resolution
An ounce of prevention is worth a pound of cure. Avoiding conflict or mitigating escalation is best achieved through understanding where the other person is coming from. When a supervisor and an employee possess a deeper understanding of the other person's working style and how they form working relationships each is able to identify compatibility, similarities and differences. The result is a more harmonious working relationship and better communications.

Back to Top

Federal Immigration and Customs Enforcement to Target Employers

Federal agents with Immigration and Customs Enforcement (ICE) have a new target for investigations of workplace violations of federal immigration law—employers. Under new enforcement guidelines issued on April 30, 2009, ICE investigators will concentrate on building cases against businesses that are suspected of hiring undocumented immigrants before they raid workplaces and round up any illegal workers.

The guidelines are a shift from recent enforcement tactics that resulted in high-profile raids on work sites where thousands of suspected undocumented immigrants were arrested. According to ICE statistics, of the more than 6,000 arrests made related to work site enforcement during 2008, only 135 were of business owners or managers who hired undocumented workers.

“It appears that officials at ICE and the Department of Homeland Security have finally gotten religion on this. They seem to have finally heard the message that the most effective approach to work site enforcement is to build strong cases against employers that hire undocumented workers,” said Mary Pivec, a partner with Keller Heckman LLP in Washington, D.C.

Pivec said that ICE’s new enforcement guidelines should be a wake-up call for employers and that businesses need to review their hiring and documentation review policies and procedures carefully.

“Employers should take any inquiry or request for information from ICE investigators very seriously,” she said. “The best option is to comply fully with their requests and be willing to work with them.”

ICE posted a fact sheet on the new enforcement guidelines on the agency’s Web site. According to the information, ICE will continue to arrest and process for removal any undocumented workers identified during work site investigations. However, one of the key changes in the enforcement effort will be the focus on criminal prosecution of employers who hire illegal workers knowingly.

The prosecution of employers could include supervisors and managers guilty of hiring undocumented workers willfully. Homeland Security Secretary Janet Napolitano said in a written statement that the new enforcement directive is needed “to target the root cause of illegal immigration.”

Pivec believes that the directive will mean that ICE investigators will use a wide variety of investigative tools to help build their cases against employers violating the law.

“I believe you will see more cooperation between federal agencies like ICE and the Labor Department’s Wage and Hour Division,” she said.

Information on violations of minimum wage and overtime laws gathered by federal Wage and Hour Division investigators could be useful to ICE in identifying companies that potentially violated immigration law, according to Pivec.

“Most undocumented immigrant workers work in lower-wage jobs and are more likely to be underpaid or not paid overtime by unscrupulous employers,” Pivec said.

Under the new enforcement directive, verification of new hires’ work status and identification documents will become more important than ever, Pivec said. She believes that employers that use the federal government’s employee verification system, E-Verify, could be in better shape than those that do not. E-Verify is voluntary for most employers.

“By using E-Verify, employers are demonstrating a good-faith effort to check the employment eligibility of their work force,” she said.

However, employer groups, including the Society for Human Resource Management (SHRM) have criticized the E-Verify program, saying the verification system is error-prone, is inefficient and lacks the capacity to verify the employment eligibility of the millions of workers hired every year by U.S. companies.

ICE’s new enforcement guidelines could renew interest in developing an effective nationwide verification system that is used by all employers, several sources familiar with the issue said.

On April 30, 2009, the U.S. Senate Judiciary Subcommittee on Immigration, Refugees and Border Security held a hearing on immigration reform. Witnesses testified that reform legislation must feature meaningful enforcement measures, including a mandatory employment verification program.

A week before the Senate hearing, Rep. Sam Johnson, R-Texas, introduced the New Employee Verification Act (H.R. 2028). The measure would create a mandatory electronic verification system that would replace E-Verify.

“Employers want, need and deserve a reliable employee verification system, and I want to give it to them,” Johnson said.

It's Your Business
Fixing the Health-Care Coverage Mess

From the Top
12 Questions to Measure Employee Engagement

Ask the Experts
FMLA Regulations

People
Management
Allow for Work-Life Balance To Retain Valuable Employees

Resolving and Avoiding Conflicts in the Workplace

Office Space
How to Raise Morale Without Hiking Salaries

Rules and Regulations
Federal Immigration and Customs Enforcement to Target Employers

Health Beat
How to Help Employees Kick the Habit

Resource Corner
Links to Important
Resources

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Office Space

How to Raise Morale Without Hiking Salaries

Nothing takes the place of a big fat raise. But if you can’t afford to offer monetary rewards to deserving staffers, it doesn’t mean you’re destined to have a bitter, unproductive team.

The key is offering something to deserving employees—whether it’s as simple as praise for a job well done, or cost-effective perks and benefits. Staffers can be motivated and perform better through alternative rewards.

In fact, 92 percent of employees said they’d stay put for less money if they were given proper recognition and the right work-life balance, according to a study by Employee Hold’em, a talent retention solutions firm based in Indianapolis.

Here are three alternatives to raises that can work wonders for your staff’s morale and productivity:

A break from the office.
As long as your staff remains productive, offering a flexible work schedule doesn’t have to cost you a thing. There are a slew of ways to accomplish this—from allowing employees to work remotely one day a week to completing a workload in a shorter time frame (say from two to three days instead of five).

The (figurative) pat on the back.
This could make all the difference in the world when it comes to retaining your talent. Employees need recognition to thrive and feel appreciated. Anything from a thank you card or e-mail to publicly praising a staffer in front of his or her co-workers can be highly effective. If you can, modest gift cards for gas, groceries or restaurants are also well-received perks.

Personalized rewards.
This option allows you to recognize a job well done and show you care about your staff’s personal time. Example: A Phoenix-based company gives extra paid time off to employees who offer a small amount of their non-work time for the firm’s employee volunteer program.

Health Beat

How to Help Employees Kick the Habit

Smokers cost the U.S. economy $97.6 billion a year in lost productivity—not to mention what they do to your health insurance costs.

The vast majority of ECPs are small businesses with fewer than 10 employees, so it’s well worth your while to get your employees to “kick the habit.” The following online resources can help.

CDC.gov—Straight from the Centers of Disease Control and Prevention, you’ll get posters and messages from the U.S. Surgeon General on smoking cessation. There’s even a number for a free “quit line.”

Americanheart.org—The American Heart Association offers downloadable worksheets on everything from quitting smoking to how to avoid the post-quit weight gain.

Whyquit.com— The “smoker meters” posted here will let quitters track how long they’ve been smoke free, how much money they’re saving by quitting, and how much longer they’ll live because of it.

Quitnet.com—Employees working to kick the habit can join this online community with others similarly situated in their interest to stop smoking.

Mdanderson.org—This free, interactive program lets smokers in various states thinking of kicking the habit log on to get the help they need at the time they need it.

Epa.gov—Even if employees won’t stop smoking for themselves, maybe they’ll do it for their kids.

Easy-reference to Web resources about human resource policies and rules

Americanheart.org

CDC.gov

Epa.gov

Employeeholdem.com

ICE Fact Sheet

H.R. 2028

Mdanderson.org

Quitnet.com

Whyquit.com