The latest thing you can’t ask employees to do: New ruling

Yet another common employer policy has come under fire from the National Labor Relations Board (NLRB). It doesn’t matter if your workforce is unionized or not — if you’ve got this policy, it could be deemed illegal. 

What’s the policy? Asking workers to keep internal investigations confidential.

In a case that involved the telecommunications giant T-Mobile USA Inc., an administrative law judge for the NLRB just ruled that asking employees to keep information that’s shared/discussed during internal investigations confidential infringes upon workers’ rights under the National Labor Relations Act (NLRA).

Employee reports harassment

Angela Agganis was a customer service rep for a T-Mobile USA store in Oakland, ME, when she went to a T-Mobile HR representative, Karen Estes, to report a sexual harassment allegation against her coach.

Afterwards, Estes informed Agganis that she would have to file an incident report. Estes then gave Agganis T-Mobile’s “Notice and Acknowledgement of Duty to Cooperate and Confidentiality,” and she told Agganis to sign and date the notice form.

The notice stated, in part:

“You should keep confidential all communications between you and the Corporate lnvestigator(s) concerning this matter throughout the pendency of this investigation unless permitted by law. This includes all questions and answers during this interview, any written statement that you provide to the investigator(s), and all other information or documents provided to the investigator(s) in connection with this matter.”

Then, in conclusion, the notice stated:

“By signing below, you acknowledge that (1) you have read this document, understand it and agree to adhere to it; and (2) failure to adhere to the duties set forth above may cause harm to T-Mobile and subject you to performance improvement action up to and including dismissal.”

After reading the form Agganis asked if it was correct that she could be disciplined, up to and including termination, for discussing the situation with her co-workers.

Estes confirmed Agganis was correct.

Unfair labor practice

When T-Mobile’s worker’s union, the Communications Workers of America, caught wind of this, it filed an unfair labor practice charge with the NLRB.

The union claimed the notice violated employees’ NLRA rights to freely discuss the terms and conditions of their work.

Section 7 of the NLRA gives employees the right to take part in “concerted activities for the purpose of collective bargaining or other mutual aid or protection … ”

The NLRB has been interpreting this clause very broadly in recent years. It has said it gives employees the unequivocal right to discuss the terms and conditions of their employment. The underlying reason being that employees need to have the ability to plan or coordinate activities that may lead to union representation.

As a result, the NLRB has been on a scorched-earth crusade to eliminate any employer policies that have the potential to prevent employees from taking any such actions.

The ruling

Did the administrative law judge who heard the case agree with the Communications Workers of America’s charges against T-Mobile?

Yes. The judge said the notice and confidentiality requirement did violate employees’ NLRA-protected speech rights.

T-Mobile must now rescind the confidentiality notice and policy, and post a notice about the rescission where employees will see it.

What’s particularly troubling for employers about this case is that T-Mobile actually included a clause in the confidentiality notice that said:

“Please note that nothing in this Notice and Acknowledgement impacts your rights to discuss terms and conditions of employments as protected by law … “

But the judge said that wasn’t enough to save T-Mobile. Why? In essence, the judge said the statements requiring employees to keep all communications between employees and investigators confidential may have carried enough weight with employees to discourage them from speaking up about the terms and conditions of their employment.

Another thing that’s important about this case is that it applies not just to unionized workforces, but to all workforces. While the NLRB is commonly associated with unions, it has the power to made decisions that affect all employers.

Other common policies the NLRB has axed recently include:

  • “no-personal use” email polices
  • prohibitions on discussing wages
  • social media policies prohibiting employees from discussing work matters
  • prohibitions against discussing employee discipline, and
  • handbook policies prohibiting negative comments about fellow team members.

Oops: This FMLA policy was missing something kind of important

It’s time to double-check that your FMLA policy and notices aren’t missing this critical, but apparently easy to overlook, piece of info. 

What is it? The 12-month period your company uses to calculate an employee’s remaining FMLA eligibility.

In other words, are you clearly articulating the date ranges you’ll use to add up how much of employees’ 60-day allotment they’ve used?

The Illinois Department of Corrections (IDC) didn’t, and the legal pickle it’s in can teach a lot of employers what happens when this piece of vital info is missing from your written FMLA policy and/or other documentation.

The IDC was sued by Michael Caggiano, a former corrections residence counselor at IDC’s Westside Adult Transition Center, after IDC terminated Caggiano for accumulating too many unexcused absences.

Caggiano had taken off to care for his ill mother and had requested that his absences count as FMLA leave.

He’d taken plenty of FMLA leave in the past for the same reason. Only this time, IDC claimed he’d exceeded his 60-day FMLA allotment, so his absences would need to go down as unexcused. That resulted in him accumulating more unexcused absences than IDC’s attendance policy allowed. So Caggiano was terminated.

Never told how it was calculated

Caggiano cried foul and filed an FMLA interference lawsuit against IDC. Among a few different arguments Caggiano states for why his FMLA leave was interfered where assertions that:

  • he was never formally told how his FMLA leave was being calculated or from what date the calculation started, and
  • he still had more than enough FMLA eligibility remaining to cover his unexcused absences.

IDC filed a motion for summary judgment with the court in an attempt to get Caggiano’s FMLA interference lawsuit thrown out.

It claimed Caggiano received all of the FMLA leave he was entitled to, and therefore he was no longer protected by the law. So he couldn’t sue for interference, IDC claimed.

IDC’s motion was denied.

The court said during the summary judgment phase of a case, “The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion.”

The party opposing the summary judgment motion was Caggiano, so the court had to view all the evidence in front of it in the light most favorable to him.

What was most favorable to him?

The big problem with IDC’s argument: It produced no evidence that had clearly articulated to Caggiano when its 12-month period for calculating FMLA leave began.

As attorney Jeff Nowak points out over at his FMLA Insights blog, the result of this was that the court calculated Caggiano’s leave in the way most beneficial to Caggiano. (Nowak also expounds on the benefits of always using the “rolling method.”)

And under the court’s calculation, Caggiano would’ve still had two weeks of FMLA eligibility to cover his unexcused absences.

As a result, the court determined, “the evidence is such that a reasonable jury could return a verdict for the nonmoving party [Caggiano].” So it’s sending the case to trial, where IDC will have to convince a jury it provided Caggiano with a clear explanation of how it calculated his FMLA leave.

Analysis: Clearly define your 12-month period

This lawsuit demonstrates how important it is to clearly define how you calculate leave — in both your general FMLA policy and your notices to employees.

In addition, it’s a good idea to provide written updates on how much FMLA leave employees have remaining. This is the only way to remove suspicions that an employee didn’t know what the official count was.

Was employee’s nap FMLA protected? How one court ruled

Scorned employees will cry “FMLA protection” for just about anything these days. The question is, when can the argument stick? 

The answer, unfortunately, is all too familiar: It depends.

All employers can do is look at what the courts are currently saying, and use their guidance to direct FMLA policies and procedures.

In the most recent case to cross our desks, an employer’s smartly crafted policies won the day.

Migraines caused her to miss work

The case involved Jodi Lasher, a registered nurse for Medina Hospital in Ohio.

Lasher suffered from severe, sometimes debilitating, migraine headaches. These migraines had caused her to miss work on several occasions, for which she was issued a written warning. The hospital’s management had even received complaints from employees that Lasher had “disappeared” from her unit to deal with her headaches.

Medina hospital did the right thing. It approached Lasher about exploring possible accommodations for her condition. Then, after determining that accommodations weren’t applicable to her situation, the hospital’s management team recommended that Lasher use intermittent FMLA leave to deal with her condition.

At this point, the hospital laid out a procedure that Lasher was to follow when migraine symptoms flared up — symptoms severe enough to prevent her from doing her job, that is. The procedure required Lasher to let the nurse operations manager on duty, or at the very least one of her colleagues, know when she needed to remove herself from her duties.

Lasher acknowledged that she understood this procedure, and she agreed to follow it in the future.

The hospital approved all of Lasher’s FMLA leave requests, including an occasion when she developed migraine symptoms during her shift.

‘Major infraction’

Fast forward months later, and Lasher had a migraine flare up while on duty. She then left a pregnant patient unattended without informing anyone.

She was then found sleeping in an adjacent vacant room.

The hospital labeled it a “major infraction” of its procedures. It said it created an employee, as well as a patient, safety issue. So it fired Lasher.

She then filed an FMLA interference lawsuit. In essence, she claimed her nap was FMLA-protected.

The hospital filed for summary judgment in an attempt to get Lasher’s lawsuit thrown out.

The court granted summary judgement in favor of the hospital, and tossed the suit.

It ruled that for Lasher’s FMLA interference claims to survive summary judgment, she had to show:

  1. she was an FMLA-eligible employee
  2. the hospital was an employer as defined under the FMLA
  3. she was entitled to leave under the FMLA
  4. she gave the employer notice of her intention to take leave, and
  5. the employer denied her FMLA benefits to which she was entitled.

Where Lasher’s claim fell apart was in satisfying the fourth element of that test. The court ruled Lasher failed to provide notice of her intention to take FMLA leave, despite an established procedure for providing notice that Lasher had agreed to follow.

The court then added:

“An employee seeking FMLA leave need not mention the statute expressly, but she must convey enough information to apprise her employer that she is requesting leave for a serious health condition that renders her unable to perform her job.”

Even using this somewhat lenient standard, Lasher’s actions fell short.

Case closed. Lawsuit tossed.

But before putting a bow on the case, the court pointed out some of the other facts the hospital had on its side. For starters, it had a track record of approving Lasher’s prior leave requests without fail. Plus, the hospital itself was the one to suggest Lasher apply for FMLA leave in the first place.

Both of those elements gave Lasher a pretty steep hill to climb to prove that the hospital intended to interfere with her FMLA rights.

Cite: Lasher v. Medina Hospital

EEOC broadens its reach with 2 new discrimination lawsuits

The EEOC has officially unveiled yet another way employees can sue you for discrimination.  

The agency announced that it has filed its first two sex discrimination cases based on sexual orientation.

EEOC‘s Philadelphia District Office filed suit in U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center. The agency filed a separate suit in U.S. District Court for the District of Maryland, Baltimore Division, against Pallet Companies, doing business as IFCO Systems NA.

In the case against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. The agency said that the male employee’s manager repeatedly referred to him using anti-gay epithets and made other offensive comments about his sexuality and sex life.

When the employee complained to the clinic director, the director responded that the manager was “just doing his job,” and refused to take any action to stop the harassment, according to the suit.

After enduring weeks of such comments by his manager, the employee quit rather than endure further harassment, the EEOC claimed.

Retaliation alleged, too

In its suit against IFCO Systems, EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as “I want to turn you back into a woman” and “You would look good in a dress,” the agency said.

At one point, the supervisor blew a kiss at her and circled his tongue at her in a suggestive manner, EEOC alleged. The employee complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later in retaliation for making the complaints.

Long time coming

Although these are the first lawsuits of their kind filed by the EEOC against private employers, the agency has maintained its stance that sexual orientation bias is covered under Title VII since 2013. No federal appeals court has ruled Title VII covers sexual orientation, however.

In a ruling last summer that covered only federal employees and contractors, the agency determined that sexual orientation discrimination is, by its very nature, discrimination because of sex.

In that case, EEOC explained the reasons why Title VII’s prohibition of sex discrimination includes discrimination because of sexual orientation:

  • Sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex
  • Sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII, and
  • Sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.

Prior to filing the two landmark lawsuits, the agency has administratively handled a number of cases where employees have alleged discrimination based on their sexual orientation.

In the past, a number of courts have ruled that sexual orientation isn’t covered under federal anti-discrimination law — saying that discriminating against an employee based on sexual preference is different than discriminating against someone because of their gender.

We’ll keep you posted.

OT rule might be released in spring … or summer … or maybe spring, DOL says

The DOL keeps changing its tune on when it’ll release the final revisions to the overtime exemption rules. 

The agency’s final rule will be kind of a big deal. So employers really want an accurate timeline on when the rule will be released — so they can plan accordingly.

Problem is, the DOL itself doesn’t appear to have a specific timeline mapped out within its own walls for when the rule will be released.

Here’s what we know:

  • Last fall, at the American Bar Association’s Labor and Employment Law conference in Philadelphia, the DOL’s Solicitor of Labor M. Patricia Smith said during a panel discussion that the finalized changes to the FLSA’s overtime eligibility rules likely won’t be issued until late 2016.
  • Shortly after, the DOL released its fall 2015 regulatory agenda, which said the agency was targeting a July 2016 release date for the final rule. The deadline wasn’t set in stone, but it gave employers an idea of when they should be ready for the new regulation.
  • Then DOL Secretary Thomas Perez told Bloomberg BNA in an interview that the agency is “confident we’ll get a final rule out by spring 2016.” Not long after Perez’s statements went public, the Congressional Research Service, a branch of the Library of Congress, released a report that suggested the DOL had until approximately May 16 to release the rule to avoid giving the next Congress and president the power to overturn the rule. The report detailed a little-known mechanism created by the Congressional Review Act that gives Congress 60 legislative session days to pass a joint resolution that would invalidate any major rule. If the rule is submitted to Congress with fewer than 60 session days remaining on the legislative calendar, then the next Congress will have a similar 60-day period to consider the rule. Following the release of the report, Perez’s statements made perfect sense, until …
  • … Smith, while speaking at another meeting of the American Bar Association, said the DOL’s white collar exemption rule would be published in July 2016 (a tip of the hat to law firm Ford & Harrison for bringing her comments to our attention). Smith also stated that the rule will become effective 60 days after it’s published.
  • Then, roughly a week later, Smith backtracked … a bit … by saying the final rule could be published in or before July. She also said the rule will take effect at least 60 days after it’s published.

What should employers do?

What is all of this telling employers? This is a complicated law, and the DOL appears to be poring over the details carefully. It doesn’t want to promise a release date it can’t meet.

And reading the tea leaves, it appears, to the agency’s credit, that the DOL’s putting an emphasis on getting the rule just right rather than wrapping it up before it’s subject to the Congressional Review Act.

Of course, that doesn’t mean you can count out the rule being published prior May 16.

So what should employers do? The safest thing is to keep planning for a spring release and to have to be in full compliance by summer. That’s the only way to ensure you’re not behind the eight ball when the rule is published.

Handling the tricky questions in FMLA intermittent leave

It’s a given: Intermittent FMLA leave is a giant thorn in the side of HR people everywhere. But not all intermittent leave requests are equal. Here’s a look at some of the most common scenarios, and how to handle them.

The FMLA allows employers some flexibility in granting different kinds of intermittent leave. Employees are entitled to take it for serious health conditions, either their own or those of immediate family members.

The law also allows use of intermittent leave for child care after the birth or placement of an adopted child, but only if the employer agrees to it. It’s the company’s call.

It’s not always simple, however.

If the mother develops complications from childbirth, or the infant is born premature and suffers from health problems, the “serious health condition” qualifier would likely kick in. As always, it pays to know the medical details before making a decision.

Eligibility’s not automatic

Companies can successfully dispute bogus employee claims to FMLA eligibility.

Consider this real-life example:

A female employee in Maine said she suffered from a chronic condition that made it difficult to make it to work on time.

After she racked up a number of late arrivals – and refused an offer to work on another shift – she was fired.

She sued, saying her tardiness should have been considered intermittent leave. Her medical condition caused her latenesses, she claimed, so each instance should have counted as a block of FMLA leave.

Problem was, she’d never been out of work for medical treatment, or on account of a flare-up of her condition.

The only time it affected her was when it was time to go to work.

Sorry, the court said. Intermittent leave is granted when an employee needs to miss work for a specific period of time, such as a doctor’s appointment or when a condition suddenly becomes incapacitating.

 That wasn’t the case here, the judge said – and giving the employee FMLA protection would simply have given the woman a blanket excuse to break company rules.

Cite: Brown v. Eastern Maine Medical Center.

Designating leave retroactively

In order to maximize workers’ using up their allotted FMLA leave, employers can sometimes classify an absence retroactively.

Example: An employee’s out on two weeks of vacation, but she spends the second week in a hospital recovering from pneumonia.

Her employer doesn’t learn of the hospital stay until she returns to work. But she tells her supervisor about it, who then informs HR. Within two days, HR contacts the woman and says, “That week you were in the hospital should be covered by the FMLA. Here’s the paperwork.”

The key here is that the company acted quickly – within two days of being notified of the qualifying leave.

The tactic’s perfectly legal, and it could make a difference in the impact FMLA leave time could have on the firm’s overall operation.

It’s also an excellent example of the key role managers play in helping companies deal with the negative effects of FMLA.

Using employees’ PTO

First, a no-no: Employers should never tell workers they can’t take FMLA leave until they’ve used up all their vacation, sick and other paid time off (PTO).

Instead, you can require employees to use their accrued PTO concurrently with their intermittent leave time. Employers can also count workers’ comp or short-term disability leave as part of their FMLA time – but in that case, employees can’t be asked to use their accrued PTO.

The transfer option

Companies can temporarily transfer an employee on intermittent leave, to minimize the effect of that person’s absence on the overall operation.

The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same.

And, of course, the employee must be given his old job – or its equivalent – when the intermittent leave period’s over.

A few restrictions: The move can’t be made if the transfer “adversely affects” the individual. Example: The new position would lengthen or increase the cost of the employee’s commute.

Such transfers need to be handled in such a way as to avoid looking like the employer is trying to discourage the employee from taking intermittent leave – or worse yet, is being punished for having done so.

Cooperation, please

Although FMLA is certainly an employee-friendly statute, employers do have some rights when it comes to scheduling intermittent leave. For instance, employees are required to consult with their employers about setting up medical treatments on a schedule that minimizes impact on operations.

Of course, the arrangement has to be approved by the healthcare provider. But if an employee fails to consult with HR before scheduling treatment, the law allows employers to require the worker to go back to the provider and discuss alternate arrangements.

Sometimes, it’s as simple as taking an employee aside and saying, “I know you’ve got to go to physical therapy. But these 10 o’clock appointments are really affecting work flow. Could you see about scheduling them for after work hours?”

The firing question

Yes, companies can fire an employee who’s on intermittent FMLA leave. Despite the fears of many employers, FMLA doesn’t confer some kind of special dispensation for workers who exercise their leave rights.

Obviously, workers can’t be fired for taking leave. But employers can lay off, discipline and terminate those employees who violate company policies or perform poorly.

When an employee on FMLA leave is terminated, the DOL decrees that the burden’s on the employer to prove the worker would have been disciplined or terminated regardless of the leave request or usage.

Reductions in force

When an employer has a valid reason for reducing its workforce, the company can lay off an employee on FMLA leave – as long as the firm can prove the person would have been let go regardless of the leave.

So companies should be prepared not only to prove the business necessity of the move, but to show an objective plan for choosing which employees would be laid off.

Misconduct or poor performance

Employees on FMLA leave – of any type – are just as responsible for following performance and behavior rules as those not on leave.

But companies that fire an employee out on FMLA will be under increased pressure to prove that the decision was based on factors other than the worker’s absence.

And courts might well pose employers a key question: Why didn’t you fire this person before he/she took leave?

That answer’s not always difficult. Many times, employers don’t realize how badly an employee was doing until they see the mess he or she has left behind.

The good news: A number of courts have upheld employers’ rights to fire employees on FMLA leave – even when the employee’s problems were first discovered when the employee went off the job.

 

DOL quietly drops big news on new overtime rules

The DOL’s been pretty quiet about what it’s doing behind the scenes about changing the overtime exemption rules and salary threshold. But it has finally spoken. 

This week, at the American Bar Association’s Labor and Employment Law conference in Philadelphia, the Solicitor of Labor M. Patricia Smith shared some insider info that elicited “gasps” from the audience, according to a report by The Wall Street Journal.

Smith said during a panel discussion that the finalized changes to the FLSA’s overtime eligibility rules likely won’t be issued until late 2016. From that juicy piece of info, one could surmise that they won’t take effect until 2017.

This is huge news for the business community, which hasn’t been shy about expressing outrage over the proposed overtime rule changes the DOL issued this summer. The delay means employers have more time to prepare, even though they don’t know what the finalized rules will look like yet.

The period during which the public can comment on the proposed rules ended Sept. 4, and the DOL received roughly 270,000 comments during that period. That’s about three times the amount of comments the agency received when it last updated the overtime rules back in 2004. About 50,000 comments came in during the last week alone.

But despite that last-minute outpouring of commentary, the DOL announced it wouldn’t extend the comment period. It said the standard 60-day comment period — combined with its outreach efforts prior to the proposal being published — was enough to “produce a quality regulation.”

So all signs pointed to the final rules being issued sometime in early 2016. But Smith cited the amount of comments it received and the complexity of the law as the two main reasons the agency’s looking at a later date for releasing the rules.

What we do know

While the DOL’s been mum on whether or not it’ll make significant changes to its proposed rules, we do know a few things for certain about what’ll be in the final rules.

For starters:

  • The minimum salary threshold will rise … significantly. The current threshold a worker must hit to be overtime-exempt is $23,660. The proposed rules seek an increase to $50,440. And while it may not climb quite that high, it will climb — likely to at least $40,000 or so.
  • The threshold will automatically increase. For the first time ever, the salary threshold will be tied to an automatic-escalator, so it can keep pace with inflation — and so major legislative changes aren’t needed every time lawmakers want it to increase.
  • The DOL is looking at making changes to the duties tests. The DOL hasn’t suggested changing the executive, administrative, professional, computer or outside sales duties tests (see them here) yet. But the agency did specifically ask for comments on whether the tests should be changed and whether they’re working to screen out employees who are not bona fide white collar exempt employees.

The X factor

There is one X factor in all of this that no one has mentioned yet: the effect the upcoming presidential election will have on the rulemaking process.

Originally, the DOL had set a tentative deadline of November 2014 for issuing the proposed rules. Then, they didn’t come out until more than six months after that soft deadline had passed.

Then, it was expected the finalized rules would be issued sometime in early 2016. Now, that’s clearly not what’s going to happen. All of these delays have butted the rulemaking process right up against the presidential election.

This begs the question: Would the Obama administration really issue a highly controversial set of finalized rules just prior to the election?

After all, business groups, employers and even a former DOL administrator (who oversaw the last rule changes) have staunchly opposed the proposed rule changes, saying they’ll stifle companies’ ability to operate, drive prices up and/or actually hurt the very people the rules are trying to help. This could potentially give the GOP more ammunition to use on the campaign battlefield.

On the other hand, if public opinion polls reveal that the rule changes are something the voting public wants and views as beneficial, the Democrats may try to push the final rules through prior to the election to give their political campaigns a shot in the arm.

Time will tell which scenario will play out — but a lot of it likely depends on how Democrats feel the voting public will react to the rule changes once they’re finalized.

One final thing to consider: Since the entire rulemaking effort was spurred by the Obama administration, and heavily backed by Democrats, it’s entirely possible any finalized rule changes will be repealed should a Republican win the White House next fall.

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COBRA lawsuit: Pro-employer ruling shows importance of ‘good faith’ efforts

When an employer accidentally fails to send a timely COBRA notice to a terminated employee, is the company doomed to pay steep penalties if the individual sues?  

That question was put to the test in a recent COBRA lawsuit.

The impact of missed care

In this case — Rivera v. Union de Tronquistas de Puerto Rico Local 901 — an employee sued his former employer for failing to provide a COBRA notice.

He argued that the employer’s mistake had impacted his access to medical care and that both he and his spouse had foregone necessary care because of the lack of coverage.

While the company acknowledged its error, it said there was no evidence the mistake was intentional or that the former employee was “prejudiced” by the missed notice.

A court dismissed the request for a trial and decided not to impose any statutory penalties on the employer.

As employers know, under ERISA failing to provide a COBRA notice to a qualified individual can carry statutory penalties of up to $110 per day, which can really add up.

Not always forgiving

So does this ruling mean courts are less likely to slap employers with statutory penalties if they can prove the COBRA mistake was an honest one?

No.

Granted, courts are generally more willing to work with firms that can prove – through detailed recordkeeping – their “good faith” efforts to comply with COBRA regs.

But we’ve also seen plenty of recent COBRA lawsuits where courts imposed the maximum fines and penalties on employers for seemingly innocent mistakes.

2 proven safeguards

In addition to solid recordkeeping, employers should do a self-audit of their own COBRA processes every so often.

If you’re wondering what to look for, the IRS offers a checklist of its own audit guidelines here.

And if you outsource your COBRA administration, it’s critical to have a clear understanding of your third-party administrators’ (TPAs) processes.

Reason: Courts have consistently ruled that it’s the employer, not the TPA, that’s ultimately on the hook for any COBRA compliance violations.

Obama proposes expansion of employee retirement plan options

The Obama administration is proposing some new ways to get employees involved in saving for retirement.  

The retirement proposals are part of an economic security agenda Obama outlined in his recent State of the Union address.

The president’s plan will involve a number of legislative proposals, which he’s expected to outline in the 2017 budget he’ll submit to Congress next month.

Here are the key parts of the proposal, as outlined in a fact sheet issued by the White House:

  • Make it easier for employers to create pooled 401(k) plans to lower cost and burden. Multiple employer plans (MEPs) already allow employers with a “common bond” to form a pooled retirement plan, offering benefits through the same administrative structure but with lower costs and less compliance burden than if each employer offered a separate plan. In his upcoming budget, the president will for the first time propose to remove the “common bond” requirement, enabling employers to take advantage of “open MEPs” while adding significant new safeguards to ensure workers are protected. As a result, more small businesses should be able to offer cost-effective, pooled plans to their workers, and certain nonprofits and other intermediaries will be able to create plans for contractors and other self-employed individuals who don’t have access to a plan at work. As an added benefit, if an employee moves between employers participating in the same open MEP, or is an independent contractor participating in a pooled plan using the open MEP structure, he can continue contributing to the same plan even if he starts work for a different company.
  •  Provide tax cuts for businesses that choose to offer more generous employer plans or switch to auto-enrollment. Obama will again propose in his budget to triple the existing “startup” credit, so small employers that newly offer a retirement plan would receive a tax credit of $1,500 per year for up to three years – likely enough to offset administrative expenses. And because auto-enrollment is the most effective way to encourage workers with access to a plan to participate, small employers that already offer a plan and add auto-enrollment would also get a tax credit of $500 per employer per year for up to three years.
  •  Expand retirement savings options for long-term, part-time workers. Recognizing that part-time workers are much less likely to have access to a retirement plan, in part because employers are allowed to exclude them from participation, Obama proposes to require that employees who have worked for an employer at least 500 hours per year for at least three years be eligible to participate in the employer’s existing plan.
  •  In addition to encouraging employers to offer traditional retirement plans such as a 401(k), the administration hopes to increase the availability and use of IRAs and help workers save by automatically enrolling them in these accounts.

According to the White House, the new proposals would provide more than 30 million people with access to workplace retirement savings options. The proposals would encourage and enable more employers to offer plans such as a 401(k), while creating alternative savings arrangements so workers can save for retirement at work even if their employer does not offer a plan.