Hot Topics of Human Resources

Human Resource Management Services, LLC Hot Topics of Human Resources Michigan Primary Care Association September 28, 2009 By Andie Creamer, CHRS [email_address]

American Recovery and Reinvestment Act of 2009
The following are part of the stimulus package that was signed into law in February 2009:
Extending Unemployment
Health Care Technology
COBRA Coverage Expansion
More Stringent HIPAA Regulations
E-Verify

Unemployment Benefits
Normal unemployment benefits = 26 weeks
Federal Emergency Unemployment (from the Recovery Act) = 33 weeks
In Michigan, Gov. Granholm signed a bill effective April 13, 2009 to extend additional benefits for 20 weeks. These dollars also came from the Recovery Act.
Total number of weeks someone could be on unemployment is 79 weeks.
In addition, payments went up $25.00 per week.

Health Care Technology
Recovery Act will provide:
$19 Billion dollars to improve the nation’s health care information systems.
Goal: Reduce errors and streamline administrative process
How?
Nothing has been released from the Obama Administration on how, when, etc. nor is there any information on how this will work with HIPAA regulations.

Provides 65% federal subsidy of COBRA premiums for (Assistance Eligible Individuals) AEI’s for 9 months
Requires employers pay 65% upfront, then recover the money by taking a credit on their quarterly employment tax return. (Gov’t would reimburse if taxes due are less than the 65% paid)
Retroactively allows workers who become jobless as of Sept. 1, 2008 to receive COBRA benefits
In Effect until December 31, 2009

Challenges currently being experienced;
What is considered involuntary termination
Creating an environment that is intended to make the ee quit ~ this has been decided to not be a quit but instead an involuntary termination therefore eligible for COBRA subsidy.
2 different COBRA programs
1 is the regular COBRA benefits
1 is for the SUBSIDY of the COBRA benefits
Those eligible for health care coverage through another employer (spouses) are not eligible for the subsidy

HIPAA Regulations
Recovery Act Changes:
More inclusive of 3 rd party administrators that must comply with HIPAA
Duty to Notify in Case of Breach
Accounting for Disclosures now includes electronically maintained records and can go back 3 years.
Remuneration for Exchange of PHI (18 mo’s to establish final regulations, effective 6 mo’s later)
Access to Electronic PHI (effective 12 months after Act signed)
Right to Restrict Disclosures (for out of pocket payments)
Greater Enforcement

HIPAA Regulations
Duty To Notify in Case of Breach
As of August 19, 2009
Covered entities must notify the individual, HHS Secretary and the media if more than 500 individuals have been affected. (For less than 500 HHS must be notified annually)
Must be done within 60 calendar days
Notification must be written in letter or email format
Federal Trade Commission issued a companion regulation for all entities not covered by HIPAA to notify the individual in case of a breach.

HIPAA Regulations
A covered entity will have knowledge of a breach if the breach is known, or by exercising reasonable diligence would have been known to any “workforce member or agent of the covered entity”
Exception:
Encryption and Destruction
When using these approved methods of securing PHI, if there is an attempted breach, notification is not necessary

HIPAA Regulations
Title XIII of the Recovery Act is known as the Health Information Technology for Economic and Clinical Health Act (HITECH)
Revised and Increased Civil Monetary Penalties
Before the ACT, violations were $100 per violation with $25,000 cap (for similar violations) now, $50,000 per violation with $1.5 million cap.
Enforcement
Before the Act, enforcement was done only by HHS now, the State Attorney General can also enforce if they have reason to believe that the violation threatens or adversely affects any resident of the state.
Sharing of Penalties with Persons Harmed
Before the Act, no right to sue. Now, still no right to sue but the individual will share in any monetary penalties or settlements collected as a result of the violations.

HIPAA Regulations
HITECH (Con’t)
Mandatory Investigations
Before HITECH, HHS had discretion to determine whether or not to investigate a HIPAA violation. Now, in the case of willful neglect, HHS no longer has discretion ~ they must investigate the complaint and impose civil monetary penalties. (Effective 2/17/11 with regulations due out on 8/17/10)
Civil Enforcement of Criminal Matters
Before HITEC, HHS referred criminal matters to the Dept. of Justice and ended their involvement. Now, if the DOJ has not prosecuted the individual, HHS Office of Civil Rights may still investigate and impose civil monetary penalties. (No time frame noted on how long the DOJ had to investigate before HHS could intervene)

E-Verify
Computer software program that verifies that the applicant or employee is legally authorized to work in the United States.
As of September 8, 2009 required for all companies that apply for or are granted work contracts from the federal government
Those opposed to this program suggest the data is not accurate and could therefore result in someone not being employed due to poor information
Those in favor suggest this program is saving jobs for the American workers. This also puts the “immigration policing” in the hands of the federal government instead of the employer

E- Verify
Why should we understand E-Verify?
Many state legislators in favor of this program are now or have already began to design similar bills for their state including Michigan
Current Challenge
How to handle a No-Match letter
Still being worked out but employers are being encouraged to allow time for the employee to resolve the issue before termination.
Employers that knowingly employ illegal workers are being prosecuted

Family Medical Leave Act
Additions to the current FMLA guidelines
Family Leave Due to a Call to Active Duty
12 weeks in a 12 month period calculate backwards
“ qualifying exigency” defined as:
Short-notice deployment (7 day limit)
Military events and related activities
Child Care and school activities
Financial and legal arrangements
Counseling
Rest and recuperation (5 day limit)
Post-deployment activities (up to 90 days after termination of active duty)
“ Additional activities” (by agreement only)

Additions to the current FMLA guidelines
Caregiver Leave for an Injured Service Member
26 weeks in 12 months for family member or “next of kin” caring for service member. Next of kin as defined by military records.
No age limit for child under this leave option
Serious injury or illness not Serious health condition
Other FMLA leave’s are part of the 26 weeks.
Calculated forward
Possible to have more than 26 weeks of FMLA depending on when Caregiver leave takes place.
Effective January 28, 2009

Employer can make direct contact with health care provider for clarification of medical certification
Must be HR professional, leave administrator or management official
Cannot be employee’s direct supervisor
Employee give the chance to get clarification on own
In compliance with HIPAA, must get employee’s permission to make direct contact
Same guidelines apply for family member with serious health condition.
Must respond to FMLA request within 5 days

Legislative Issues
Federal Acts Passed
Lilly Ledbetter Fair Pay Act (wages, benefits, comp)
Genetic Information Non-Discrimination Act (GINA)
Federal Acts being considered
Employee Free Choice Act (Card Check)
Increase enrollment in unions
Recent set back with the removal of the changes to the card check process
Healthy Families Act
Requires employers with 15 or more employees to provide 7 days of sick time for full and part time employees
Care for “any other individual related by blood or affinity that is the equivalent of a family relationship”

Legislative Issues
Paycheck Fairness Act
Increase penalties for employers that pay less based on gender
With the passing of Lilly Ledbetter, this has become less of a priority
Reducing the number of employees for an employer to comply with FMLA
Reduce from 50 to 25
Health Insurance Restrictions and Limitations Clarification Act and Healthy Americans Act will both be impacted by the current debate regarding Health Care

Legislative Issues
Employment Non-Discrimination Act
Would prohibit discrimination on “an individuals actual or perceived sexual orientation or the sexual orientation of persons with whom the individual associates with”

Legislative Issues
State Acts Passed
Unemployment eligibility extended
State Acts being considered
Prohibiting the termination of employees for legal conduct during non-work time
Ergonomics
Mental health parity
Expanding Unemployment Insurance coverage to cover former part-time workers looking for part-time work and those enrolled in job training courses
Mandated benefits
Non-smoking workplace (except on casino floors)

Policy Issues
Use of cellular phone and email during work hours
Appearance and appropriate dress
Revealing Clothing
Baggy Clothing
Tattoos and piercings
Social Networking Sites
Facebook, Twitter, My Space
Confidentiality
Computer Use and Access
How this relates to legal conduct after working hours

Policy Issues
Reducing Statute of Limitations
As a condition of employment, I agree not to commence any action or suit relating to my employment relationship with Company Name more than six (6) months (180 calendar days) after the date of the event or date of termination of employment. Further, I agree to waive any statute of limitation to the contrary.

Policy Issues
Michigan courts have affirmed that companies can reduce the statute of limitations, generally from three years to six months from the day of infraction
Require the employee to agree to the reduction and sign this agreement
Part of the employment application and employee handbook
EEOC – does not like
Don’t know how long this will last with new Michigan Supreme Court

Policy Issues
Establishing a Right to Search
Of personal property brought onto company property or used for company business
Can search anything but the person
Must include electronic storage devises – PDA, Cell phones, Blackberries, Lap tops, Flash Drives, etc.

Privacy Issues
Social Security Number Privacy Act
If you use the Employee’s social security number as an identification number
Written and published privacy policy
Do not collecting the SSN until the applicant is a final candidate or is hired
Limiting access to the SSN
Make sure all documents with SSN are secured

Privacy Issues
Fair and Accurate Credit Transaction Act
Federal Trade Commission has published final rules on the proper disposal of personal information
As of June 1, 2005, all personal information, including telephone numbers, addresses or social security numbers, must be properly disposed of when the files get purged.
Best practice is to shred the documents.
Fines for failure to comply could be up to $2500 per violation.

Record Keeping Issues
Personnel files –
Should only hold “job related information”
Employees have access under Michigan’s Bullard Plawecki Right to Know Act.
Employees have the right to include any dispute they may have to any disciplinary action taken against them.
Should not include any medical information
Should be a “fire wall” between personnel file (job related) and other information.
Web Site: www.HRMServices.biz – under resources
Does not protect all records from being included in discovery – be careful what you keep

Discrimination Issues
Harassment – All policies should include all protected classifications.
Be sure that the policy clearly prohibits retaliation
Make sure you do not “unintentionally” retaliate
Make sure your front line supervisors take all claims seriously
EEOC – 30% of case load are harassment cases “aggressively enforcing these cases”
Dan Harter, District Director EEOC

Discrimination Issues
Claims of discrimination based upon religion or national origin.
Fastest growing area of claims
Requests for religious accommodation
Employers have a duty to accommodate unless it is a hardship to the organization
May be financial hardship or may cause employee discontent
Requests for appearance accommodation
Reasonable accommodation unless it interferes with the ability to do the job, especially if safety issue.

Immigration Issues
Expect new legislation to address illegal immigration
Need to make sure I-9 (evidence that employees are eligible to work in U.S.) are accurately completed
Retain in a separate file or binder in a locked file with limited access
Increase activity in audits – especially in certain industries and locations

Economy Issues
Staffing
Hiring may be more of a challenge under these difficult economic times.
Employee Relations
Difficult employee situations tend to be on the rise, unhappy employees don’t leave
Claims of action
Seems to be on the increase, where employees feel they have no other option…can’t find a job
Health Care costs
Impact on business growth and entrepreneurship

Management Issues
Dealing with the problems of single parents – who are protected against discrimination
Setting standards and expectations
More men are the primary care givers
Effectively dealing with problem employees
Willingness to address behavior – relationship problems
Potential liabilities
Need to handle appropriately
Need to support your actions with documentation
Need to address poor performers/behaviors for the sake of the good workers

Wage and Hour
Fair Labor Standards Act Compliance
Determining Exempt Status – Salaried does not equal no-overtime pay.
Cannot reduce wages less then one day
Many areas that can get an employer in trouble
Need to be careful of unintentionally losing exempt status
Safe Harbor published policy
Expect an increase in regulation

Human Resource Management Services, LLC
Helping you solve your employee problems
Employee relations
Customized handbooks
Management and supervisory coaching
Job descriptions
Compensation systems
Staffing
Training
Performance appraisal systems
Performance development
Policies and procedures development and implementation
Personnel file system
Human resource audits
Federal and State regulation compliance

Hot Topics of Human Resources

by MPCA on Sep 30, 2009

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