The bombs people drop on social media can detonate right away or lurk like hidden land mines. In some cases, someone is terminated from a current job for recent problematic posts. Take comedian Roseanne Barr, for example, whose tweet this spring referring to Valerie Jarrett was deemed racist and deleted immediately, but ABC executives still dropped her from her sitcom.
Or take Kenneth Storey, a University of Tampa visiting assistant professor who lost his job days after his tweet last summer suggested that the Texas victims of Hurricane Harvey were experiencing “instant karma” for voting Republican. Storey deleted his tweet, but not before a screenshot of it had gone viral.
In other instances, individuals lose a job for social media posts they made long before their employment began. That’s what happened to “Guardians of the Galaxy” director James Gunn, who was fired in July after comments he wrote on Twitter several years ago involving pedophilia and rape resurfaced. Even though Gunn said he regretted his words, it wasn’t enough to save his job.
When an employee posts something offensive, HR professionals are often on the front line of protecting the employer’s brand. Hiring managers also may be expected to act as defenders of the company if a candidate’s online posts have the potential to reflect poorly on the organization’s image.
Attorney Eric Meyer, who blogs about workplace issues, tracks news about employees whose offensive social media comments cause them to lose their jobs. He and other experts believe that this type of termination is becoming increasingly common.
“A firefighter, for example, who puts out a racist meme … CEOs, public figures, you name it. The frequency with which I see incidents of people getting fired doesn’t seem to have declined. I don’t see any evidence that it’s getting corrected anytime soon,” says Meyer, a partner at FisherBroyles in Philadelphia.
Adding pressure to HR’s role is the ubiquity of social media and the speed at which comments can erupt into full-blown crises. “Sometimes, it’s not even a 24-hour news cycle anymore—it’s a 15-minute one,” says Betty Lochner, an HR consultant and owner of Cornerstone Coaching and Training in Olympia, Wash. “If you jump in there and get involved in a conversation that would’ve petered out on its own, that isn’t the best response either.”
But doing nothing may not be a viable option when business leaders are subject to intense pressure to terminate an employee who’s behaving badly. Determining how to respond is no easy task. HR professionals and executives must weigh the potential damage to a company’s image and reputation against their desire to foster a supportive workforce that doesn’t micromanage workers’ actions.
Ultimately, business leadership must determine which behaviors cross the line. That evaluation process could begin whenever an employer learns about a potentially problematic post. “There’s not a cutoff or a statute of limitations for information,” says Jeff Polsky, an employment lawyer with Fox Rothschild in San Francisco.
Crossing the Line
The Internet has obscured the boundaries between people’s personal and professional lives, as more workers friend and follow their colleagues. The result is that employees may become privy to details about their co-workers’ off-duty activities, including their political affiliation, religious beliefs, drug use or participation in controversial causes, that otherwise would’ve remained private.
“Social media has opened the door for us to know people’s intimate views on things that are not work-related,” says Joey Kolasinsky, SHRM-SCP, HR manager at Encore Electric Inc. in Denver.
As people conduct more business and socializing online, Facebook and Twitter have become 21st century watercoolers, where workers flock to grouse, joke and vent. “These are conversations that previously would have happened in someone’s home or in a bar or on a soccer field, and it would have gone under the radar,” says attorney John Polson, a partner with Fisher Phillips in Irvine, Calif.
But in today’s hyperconnected culture, an online comment or photo can spread like wildfire from one co-worker to another and then to multitudes of strangers.
In the early days of social media, business leaders thought they could keep tight control over workers’ use of the platforms. Less than a decade ago, many companies introduced policies forbidding workers from making any negative comments online about the employer, says attorney Mark F. Kluger. Some employers even required workers to supply the passwords to their personal social media accounts—a practice that is now illegal in some states.
But starting around 2010, the National Labor Relations Board (NLRB) began fielding complaints from workers who had been disciplined for their online behavior. The NLRB warned employers that their social media policies could not punish workers for discussing wages, working conditions and terms of employment, all of which are considered “protected concerted activity.” That can include complaints about management, low wages and lazy colleagues, and those protections extend to nonunionized workers as well.
In addition, five states—California, Colorado, Louisiana, New York and North Dakota—protect employees from retaliation for engaging in lawful off-duty conduct and political activities, no matter how distasteful their colleagues may consider their affiliations. “If any companies in those states were to terminate an employee because they were a member of the Nazi Party, they might have a problem,” says Kluger, an attorney with Kluger Healey in Florham Park, N.J.
Workers can, however, be axed for engaging in hate speech and making disparaging comments about protected categories of race, religion and gender. They can also be shown the door for disclosing confidential information and trade secrets, defaming competitors or misrepresenting the company. In general, though, a business has great latitude in deciding whether to terminate for online behavior.
“It is entirely case by case,” Lochner says. “A company has to decide: What’s its reach? What’s the damage? There is no black-and-white answer.”
Don’t wait until a crisis erupts to decide which types of off-duty conduct are unacceptable. HR professionals, company leaders and other decision-makers should agree on a list of core company values so that they will know which behaviors violate organizational principles, Lochner says.
Setting A Policy
A social media policy and related training can help employees better understand the importance of demonstrating professionalism online and provide guidance on what types of online conduct may lead to termination. The HR team at ad agency RPA in Santa Monica, Calif., provides its 750 employees with a company policy and training on managing perceptions in the workplace. A recent session covered how offhand online remarks can affect someone’s image and reputation.
When employees misstep, the gaffes are usually due to what Small describes as “a lack of awareness” as opposed to malice. In one case, an employee saw a negative comment a colleague made online about the services of one of their company’s clients. The two employees were Facebook friends, and the content appeared on a personal page. The colleague contacted Small, who met with the person who made the post and explained why it was inappropriate. Mortified, the worker apologized. “We don’t want to kill free speech, but we want to be respectful of the clients we represent,” Small says.
Even a comprehensive social media policy cannot anticipate every instance where it might be applied. “There’s no one-size-fits-all,” Polson says. “You need a policy tailored to your specific business. And you don’t want to be too broad; you don’t have to have a policy for every decision you make.”
An effective and comprehensive social media policy should be included in your employee handbook. The policy should ask employees to:
Prior to each year’s Medicare Part D annual enrollment period, plan sponsors that offer prescription drug coverage must provide notices of creditable or noncreditable coverage to Medicare-eligible individuals.
The required notices may be provided in annual enrollment materials, separate mailings or electronically. Whether plan sponsors use the federal Centers for Medicare & Medicaid Services (CMS) model notices or other notices that meet prescribed standards, they must provide the required disclosures no later than Oct. 15, 2018.
Group health plan sponsors that provide prescription drug coverage to Medicare Part D-eligible individuals must also disclose annually to the CMS—generally, by March 1—whether the coverage is creditable or noncreditable. The disclosure obligation applies to all plan sponsors that provide prescription drug coverage, even those that do not offer prescription drug coverage to retirees.
Background
The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 requires group health plan sponsors that provide prescription drug coverage to disclose annually to individuals eligible for Medicare Part D whether the plan’s coverage is “creditable” or “noncreditable.” Prescription drug coverage is creditable when it is at least actuarially equivalent to Medicare’s standard Part D coverage and noncreditable when it does not provide, on average, as much coverage as Medicare’s standard Part D plan. The CMS has provided a Creditable Coverage Simplified Determination method that plan sponsors can use to determine if a plan provides creditable coverage.
Disclosure of whether their prescription drug coverage is creditable allows individuals to make informed decisions about whether to remain in their current prescription drug plan or enroll in Medicare Part D during the Part D annual enrollment period. Individuals who do not enroll in Medicare Part D during their initial enrollment period (IEP), and who subsequently go at least 63 consecutive days without creditable coverage (e.g., they dropped their creditable coverage or have non-creditable coverage) generally will pay higher premiums if they enroll in a Medicare drug plan at a later date.
Who Gets the Notices?
Notices must be provided to all Part D eligible individuals who are covered under, or eligible for, the employer’s prescription drug plan—regardless of whether the coverage is primary or secondary to Medicare Part D. “Part D eligible individuals” are generally age 65 and older or under age 65 and disabled, and include active employees and their dependents, COBRA participants and their dependents, and retirees and their dependents.
Because the notices advise plan participants whether their prescription drug coverage is creditable or noncreditable, no notice is required when prescription drug coverage is not offered.
Also, employers that provide prescription drug coverage through a Medicare Part D Employer Group Waiver Plan (EGWP) are not required to provide the creditable coverage notice to individuals who are eligible for the EGWP.
Notice Requirements
The Medicare Part D annual enrollment period runs from Oct. 15 to Dec. 7. Each year, before the enrollment period begins (i.e., by Oct. 14), plan sponsors must notify Part D eligible individuals whether their prescription drug coverage is creditable or non-creditable. The Oct. 14 deadline applies to insured and self-funded plans, regardless of plan size, employer size or grandfathered status
Part D eligible individuals must be given notices of the creditable or non-creditable status of their prescription drug coverage:
According to CMS, the requirement to provide the notice prior to an individual’s IEP will also be satisfied as long as the notice is provided to all plan participants each year before the beginning of the Medicare Part D annual enrollment period.
Model notices that can be used to satisfy creditable/non-creditable coverage disclosure requirements are available in both English and Spanish on the CMS website. Plan sponsors that choose not to use the model disclosure notices must provide notices that meet prescribed content standards.
Notices of creditable/non-creditable coverage may be included in annual enrollment materials, sent in separate mailings or delivered electronically. Plan sponsors may provide electronic notice to plan participants who have regular work-related computer access to the sponsor’s electronic information system. However, plan sponsors that use this disclosure method must inform participants that they are responsible for providing notices to any Medicare-eligible dependents covered under the group health plan.
Electronic notice may also be provided to employees who do not have regular work-related computer access to the plan sponsor’s electronic information system and to retirees or COBRA qualified beneficiaries, but only with a valid email address and their prior consent. Before individuals can effectively consent, they must be informed of the right to receive a paper copy, how to withdraw consent, how to update address information, and any hardware/software requirements to access and save the disclosure. In addition to emailing the notice to the individual, the sponsor must also post the notice (if not personalized) on its website.
In Closing
Plan sponsors that offer prescription drug coverage will have to determine whether their drug plan’s coverage satisfies CMS’s creditable coverage standard and provide appropriate creditable/noncreditable coverage disclosures to Medicare-eligible individuals no later than Oct. 15, 2018.
Take this checklist with you to your next doctor visit. Ask which vaccines may be right for you.
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In the past week, Immigration and Customs Enforcement (ICE) has significantly increased the number of Notices of Inspection issued to employers nationwide, leading to a dramatic spike in I-9 audits. Unlike the enforcement initiative rolled out by federal authorities in February of this year, the latest sweep is no longer concentrated in Southern California but appears to be nationwide in scope.
There appears to be somewhat of a pattern with regard to which employers are targeted by this effort. ICE seems to be focusing on businesses operating in states, counties, and cities that have designated “sanctuary” status, and has also ramped up efforts to follow up with employers who have been subject to an I-9 audit in the past.
Regardless of whether you fall into either of these two categories, you are at increased risk of a visit from federal immigration authorities. What should you do today to prepare for a possible knock on the door from federal officials tomorrow?
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In “Alice in Wonderland,” the Queen of Hearts once proclaimed, “Why, sometimes I’ve believed as many as six impossible things before breakfast.” This appears to be the rallying cry of many plaintiffs across the country when they file administrative charges and lawsuits. They continue to name individual supervisors and human resources directors as individual defendants despite case law that generally holds individuals cannot be found liable under some of the most common federal employment discrimination laws: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).
Unfortunately, the clear language in case law supporting the dismissal of individuals has not prevented plaintiffs from bringing claims under these statutes. A federal court judge in Oregon recently outlined this costly and questionable practice in his dismissal opinion in a case involving Starbucks, stating:
[Plaintiff’s] attorneys regularly file suit in state court for violations of these [discrimination] statutes against individual employees, knowing that they likely will be defended and indemnified by the employer, for the ostensible purpose of educating and deterring them from unlawful behavior. This court fails to see any need to file a lawsuit to deter such unlawful behavior. Even if employees are not sued individually, their employer surely will take appropriate action to deter any future behavior. [Plaintiff’s] attorneys also admitted that as a matter of course they sue employees prior to engaging in discovery and obtaining any evidence as to how complicit the employees may have been in the alleged discrimination or retaliation. Instead, they appear to presume that any employee who questions the plaintiff’s work performance should be sued.
Being named in a lawsuit puts individuals in a terrible position of having to personally defend themselves. Even if they are able to eventually get dismissed from the complaint, they do not come out unscathed—they often get stuck paying defense costs and are usually subjected to the invasive discovery process.
This shotgun approach to employment litigation establishes that plaintiff take the Cheshire Cat’s words to heart, in pursuit of money: “If you don’t know where you are going, any road can take you there.”
Federal And State Laws That Permit Individual Liability
The frightening aspect of this trend is that those roads do sometimes lead plaintiffs to a place where they can recover from supervisors, managers, and HR directors. At the state level, New Jersey, New York, Massachusetts, Connecticut, Ohio, Oregon, Pennsylvania, and Washington are among the states that allow plaintiffs to bring claims against individuals under the theory that they “aided and abetted” discrimination or harassment. And California allows plaintiffs to bring claims against individuals for harassment. Likewise, many states allow plaintiffs to bring claims against individuals who “retaliate” against them for engaging in protected activity. These types of laws will continue to sweep across the country as the states that have enacted them are generally at the forefront of employee rights.
At the federal level, individuals are regularly found personally liable for violations of the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), Section 1981 of the Civil Rights Act, the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Employee Retirement Income Security Act (ERISA), and the Immigration Reform and Control Act (IRCA).
For instance, a 2017 case out of the Eastern District of Pennsylvania recently held that an HR director may be individually liable for FMLA and wage violations. In Edelman v. Source Healthcare Analytics, LLC, the court determined that there is individual liability under the statute because it defines an “employer” to include “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” The court next found the HR director acted in the interest of the employer when she terminated plaintiff.
The court reasoned that the HR director is subject to personal liability under the FMLA because she exerted control over plaintiff’s specific leave and because she terminated her. Using this same reasoning, it appears that the court would have likely reached this same conclusion if it was a manager, or perhaps even a general counsel, who advised the plaintiff of her FMLA rights and subsequently terminated the plaintiff’s employment.
An even more recent case out of the Eastern District of Pennsylvania denied a defendant’s request to have a race discrimination claim against the individual supervisor dismissed. In a 2018 case against a trucking company, the plaintiff made four different attempts to sue a former supervisor. The fourth time was the charm, as the court recently concluded that the plaintiff pled the bare minimum for his race discrimination claim to survive against the supervisor under § 1981.
Interestingly, the only allegation relating to possible race-based discrimination was plaintiff’s allegation that the supervisor ordered him “to go home early” and “leave work until his next scheduled shift.” The supervisor allegedly made this demand upon learning about plaintiff’s report to another employee of disparate treatment between Caucasian and African-American employees.
This case should serve as a cautionary tale to all HR directors, managers, and supervisors as there were no other allegations of race-based discrimination against the individual supervisor. In fact, there were no allegations that the supervisor had any involvement in the decision to terminate the plaintiff. Further, there were no allegations that the supervisor played a role in the union’s investigation and hearing. The court simply concluded the supervisor’s decision to send the plaintiff home was enough to survive a motion to dismiss.
Takeaways
Managers, HR directors, and supervisors should heed the Queen of Hearts’ recommendations when considering what steps to take to protect themselves and their company: “It takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”
To better protect yourself and the company, you should ensure your employee handbook accurately reflects the ever-changing laws related to protected classes and all forms of harassment. Second, you should schedule annual harassment and discrimination trainings with managers and non-managers. These trainings will act as a defense in the event of a discrimination or harassment lawsuit. Also, the trainings will put employees on notice that they may be personally liable for violations of both state and federal employment statutes.
Finally, there must be an emphasis, from the top down, to take responsibility for the company’s workplace culture. Remaining complacent exposes both companies and individuals to a disgruntled employee exclaiming “off with their heads!”
Article Courtesy of Fisher & Phillips
On June 19, 2018, the Trump administration took the first step in a three-part effort to expand affordable health plan options for consumers when the U.S. Department of Labor (DOL) finalized a proposed rule designed to make it easier for a group of employers to form and offer association health plans (AHP). A final rule relaxing rules around short-term, limited duration insurance and a proposed rule addressing health reimbursement arrangements are expected in the upcoming months. In cementing proposed changes to its January 2018 proposed rule, “Definition of ‘Employer’ Under Section 3(5) of ERISA — Association Health Plans,” the administration seeks to broaden health options for individuals who are self-employed or employed by smaller businesses. The final rule will be applicable in three phases starting on September 1, 2018.
Under the rule, it will be substantially easier for a group of employers tied by a “commonality of interest” to form a bona fide association capable of offering a single multi-employer benefit plan under the Employee Retirement Income Security Act of 1974 (ERISA). The rule outlines two primary bases for establishing this “commonality of interest”: (1) having a principal place of business in the same region (e.g., a state or metropolitan area), or (2) operating in the same industry, trade, line of business or profession. An association also may establish additional membership criteria enabling entities with a sufficient “commonality of interest” to participate in the AHP, such as being minority-owned or sharing a common moral or religious conviction, so long as the criteria are not a subterfuge for discrimination based on a health factor. Further, the final rule clarifies how the association must be governed and controlled by its employer-members in order to be considered a bona fide association capable of offering a single-employer health benefit plan.
Meeting the criteria for a bona fide group or association of employers in the final rule allows the AHP to be treated as a single-employer ERISA plan. Thus, assuming the association is comprised of employer-members with more than 50 total full-time employees, it will be considered a large group and exempt from key Affordable Care Act (ACA) market reforms, such as the essential health benefits requirements and modified community rating rules, that would otherwise apply to a health plan offered by any of its individual employer-members with less than 50 full-time employees. This is important because the ACA applies certain requirements only to small group (and individual) health insurance products and not to large group plans.
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The IRS released its first piece of guidance on the newly added credit for paid family and medical leave in the form of FAQs. The FAQs provide helpful information as employers work to either implement conforming paid leave policies or ensure that their current policies are sufficient. However, the IRS acknowledged that additional guidance is needed.
Background
As part of the Tax Cuts and Jobs Act enacted and signed into law in late 2017, Congress added section 45S to the Internal Revenue Code. This section allows employers to claim a general business credit for providing paid family and medical leave to certain employees. In order to be eligible for the credit, the employer must have a written policy that allows no less than two weeks of paid family and medical leave annually. This amount is prorated for part-time employees. The written policy also must provide for payment of not less than 50 percent of the amount normally paid. Although section 45S references the Family and Medical Leave Act of 1993 (FMLA), the leave does not have to be provided under the FMLA provisions. Instead, it can simply be allowed under the employer’s policy. If, however, the employer is not covered by the FMLA, the employer’s written policy must include a non-retaliation clause.
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The Family and Medical Leave Act (FMLA) forms expire June 30—not on their original expiration date of May 31—but experts believe they aren’t likely to change when they’re replaced with new forms.
Employers who customize their own forms aren’t too concerned with the imminent replacement of the current forms, but employment law attorneys disagree on how much the DOL forms might be tweaked.
The FMLA forms are used to certify that an employee is eligible to take FMLA leave and to notify him or her of leave rights under the law. The forms expire under the Paperwork Reduction Act of 1995, which requires the Department of Labor (DOL) to submit its forms at least every three years to the Office of Management and Budget (OMB) for approval, so the OMB can ensure processes aren’t too bureaucratic.
The DOL is renewing the current FMLA forms on a month-to-month basis until it replaces them with new forms. But the new forms may be virtually identical to the current ones with just a different expiration date.
In 2015, the DOL made a few minor tweaks to the FMLA forms so they would conform with the Genetic Information Nondiscrimination Act.
There have not been substantive changes to FMLA or its regulations in the past three years that would require changing any of the information provided or sought on the current forms, noted Tina Bengs, an attorney with Ogletree Deakins. So it is likely that the new forms, once issued, will be approved for the maximum three-year period.
Customization of Forms
Some employers customize the DOL-recommended forms for their own use, observed Steven Bernstein, an attorney with Fisher Phillips. For example, some employers are covered by state and federal FMLAs and adjust the federal forms to reflect state law requirements. Others make minor changes, such as referring to workers as “associates” rather than “employees.”
On occasion, employers incorporate reference to their accrued leave policies, while others adopt robust language disclaiming liability under the FMLA, he said.
He cautioned, however, that an employer can be held liable for using a form that harms the employee by misleading him or her about FMLA rights, and recommended that any changes be reviewed by an outside expert to ensure that added language does not inadvertently conflict with the FMLA.
Monica Velazquez, an attorney with Clark Hill, prefers customized forms so that employers aren’t handing workers documents with the DOL logo. The logo makes the forms look more official than they are, she said, and emphasizes that their use is optional.
It is recommended if you are going to create customized FMLA forms to copy and paste the information from the DOL form into the employer’s own form. If the employer plans to use its own language, use plain English and bullet points, she said. Keep things as direct as possible.
For example, instead of an open-ended question about the employee’s treatment schedule, a customized FMLA form might ask the doctor to choose a frequency of treatment—every week, month or year—and circle the response. This would reduce the challenge of reading doctors’ often illegible handwriting. Less space for handwritten information also would reduce the chances of doctors’ filling certification forms with confusing medical lingo.
Many employers put the information about health conditions at the top of the medical certification forms, as it’s the first piece of information the employer wants—what ails the employee or family member—so the employer has a better sense of whether the employee is covered by the FMLA.
FMLA Forms
The current DOL forms are: