The media, paired with political figures, have paid increased attention to workplace bullying in recent years. Legislators in 21 states have even introduced bills to address and combat workplace bullying, starting with California in 2003.
However, none of the legislatures in states which these bills have been introduced have passed the bills into law. There are a variety of explanations for why there has not been a change in the law despite workplace bullying becoming a hot button employment issue, but the most obvious explanation is this: it truly is difficult to define workplace bullying.
What Is It….Exactly?
The general definition of work place bullying is a behavior in which an individual or group uses persistent, aggressive, or unreasonable behavior against a coworker or subordinate. As with childhood bullying, we often think of workplace bullying as being physical acts against another, such as assaulting a coworker or invading a coworker’s personal space in a threatening manner, however it often takes a more subtle forms. For instance, a supervisor can act as a bully by manipulating work tasks, like giving a victim repetitive or irrelevant assignments as a means of control. Supervisors can also act as a bully in the way they provide feedback. For instance, a supervising bully can choose to belittle a subordinate in a public setting so as to humiliate them, as opposed to delivering the constructive criticism in a private setting.
Because bullying comes in many forms and is often understated, it is a challenge to create a proper definition for it. Most notably, it is difficult to draw precise lines between assertive managers and bullying conduct. Employers depend on their managers to evaluate the performance of the employees under their supervision and to provide feedback so employees can learn from mistakes and improve. The big question is how do we know when that vital evaluation process has crossed the line and become bullying behavior, especially when criticism by its nature entails negative statements.
Employers can use two simple rules of thumb to aid in analyzing if certain behavior constitutes bullying, especially with respect to supervisor/supervisee relations:
Problems Are Both Legal and Practical
State legislatures might struggle to define workplace bullying, but the absence of specific anti-bullying laws should not deter employers from being wary to this phenomenon. If left unchecked, bullying can create a host of workplace headaches, such as (1) increased use of sick leave, (2) increased use of medication, such as anti-depressants, sleeping pills, and tranquilizers, (3) social withdrawal, (4) decreased productivity and motivation, (5) increases in the frequency and severity of behavior problems, (6) erratic behavior, such as frequent crying spells and increased sensitivity, and (7) increased turnover.
And the fact that there is no designated legislation for workplace bullying does not mean that the behavior cannot create lawsuits in other ways. Assault and battery claims are the most obvious legal actions that bullying can cause, but there are a host of other ways that employees who are bullied (or who perceive they were bullied) can gain access to the courts.
For instance, a bullying victim can bring a claim pursuant to Title VII for harassment or discrimination if the individual ties the activity to a protected characteristic, such as “my female boss degrades men under her supervision.” A bullying victim can also bring a claim against an employer for negligent hiring and retention on the theory that the employer knew about a supervisor’s bullying tendencies (either during the hiring process or thereafter) and did nothing. There are even implications under OSHA which requires that employers complete a Workplace Violence Incident Report in any instance which an employee commits a violent act against another employee.
Closing Advice
In light of the performance, and litigation, related reasons to combat workplace bullying, you should take steps to handle this problem, if you have not done so already. Every employer should have an anti-bullying policy that : (1) defines workplace violence and bullying behaviors, (2) provides a reporting procedure that identifies multiple managers to whom incidents or threats can be reported, and (3) encourages employees to report incidents, especially by assuring them that the employer will not tolerate retaliation against an individual who complains of bullying.
The last point is especially important because bullying victims often feel powerless as a result of the power dynamic that the bully has fostered. You should also train your managers on workplace bullying so they have a basic understanding of the warning signs and the potential impacts for not addressing bullying at the first possible instance.
While the law has not caught up to the problem of workplace bullying, a savvy employer can get in front of the issue by taking basic steps to ensure a bully-free workplace.
Current as well as former employees have information that could prevent accidents and disasters and it is up to HR to gather it and help solve problems that could lead to future catastrophes.
“The sooner you can get the feedback the better, because you can solve problems before it is too late,” said Beth Carvin, the president and CEO at Nobscot Corp., an HR technology company that specializes in employee retention and development.
She feels that HR should be conducting exit interviews, especially in high risk occupations like health care, to identify any areas that may put the company, its customers, and consumers at risk.
Case in point is the fungal meningitis outbreak in late 2012 among patients who received contaminated steroid injections. The main focus of the investigation of this disaster was the New England Compounding Center (NECC), a pharmacy in Massachusetts, but ex-employees of Ameridose, a drug manufacturer that shared many of the same owners as NECC, came forward later with claims that NECC’s corporate culture encouraged shortcuts even if it compromised safety.
According to The New York Times, one ex-quality control technician at Ameridose stated that he was overruled by management when he tried to stop the production line when he spotted missing labels. An ex-pharmacist said she resigned because she was worried that unqualified people were preparing dangerous narcotics for use by hospitals. A salesman shared that he was allowed into the sterile lab to help out with packaging and labeling during rush orders, without any prior training.
Employees, as shown, had strong concerns about business practices as both the NECC and Ameridose. Carvin expressed that this case is a big reminder of how important getting this kind of feedback in an exit interview is. Collecting data like this during an exit interview may have allowed someone in HR to make changes before the fungal meningitis disaster occurred.
A Listening Culture
So how exactly can HR use employee feedback to prevent a costly tragedy?
One of the first steps is to create and maintain a work environment and company culture where open communication is encouraged.
Employees should feel comfortable to share their concerns on policies and practices, especially when they relate to safety and compliance. It is important to create a culture where you listen to your employees and they actually believe that you are listening.
Once you provide opportunities for employees to give feedback, you must then also act upon it, Carvin advised. This is the challenge that faces HR. You get busy and may not have time to deal with the feedback collected, but in order to becoming a listening culture, you should try to act on the information you receive from employees.
And it is important to communicate this to employees as well. If you implement something based on employee feedback, let them know that you are doing this as a result of employee feedback. The more you do that, the more feedback you will end up receiving.
Make The Business Case
Managers also need to be trained on the importance of balancing business needs with safety and to take frontline employee concerns seriously.
Carvin explained that this is where HR needs to be involved. “In the contaminated steroid tragedy, if HR had identified that safety was being set aside in favor of speed, they could have made a case to senior management for why this was bad not just from a consumer safety standpoint but also from a business prospective”.
Especially in high risk occupations, HR should analyze the information for trends and share important findings and recommendations with senior management. HR can then help facilitate discussions and set up task forces for the next steps.
How to Gather Employee Feedback
The key to gathering employee feedback is a systematic approach. Employee responses should be gathered in such a way that they transform from anecdotal stories (most often collected from a few disgruntled employees) into information that help shine light on specific and objective trends.
You need to be able to show your data is transforming from the anecdotal, which senior management will typically write off, to being aggregated and tracked. You will begin to notice that an issue will come up from not just one person but three or four, and then maybe seven, as your data builds up over time.
In exit interviews, you want to go beyond the “Why did you leave?” questions. You want to have employees rate the company on a number of factors like the work environment, direct supervisors and senior management, and try to get feedback on all aspects of their workplace experience. This is when you will see the issues start to come out.
HR staff should use both quantitative and qualitative ratings, noted Carvin. The quantitative points to where the issues are while the qualitative lets you understand the data better as it lets you know what the concern is.
To get the most out of an exit interview, Carvin suggests HR should break the data down into departments. Each department may have its own concerns, even among job types. You could then break the data down even further into gender and race and really pinpoint issues before they get bigger.
UnitedHealthcare (UHC) TV’s lineup just got a bit tastier with the addition of a new program: The Better Cook. The new show is done in partnership with General Mills Live Better America. The show is filmed in the General Mills test kitchen and features healthy recipes from the LiveBetterAmerica.com website.
The show features celebruty chef Daniel Green- a kitchen pro who specializes in health cooking. Chef Green is a regular on ShopNBC and hosts Kitchen Takeover on Twin Cities Live. He has also been a guest chef on The Food Network, The Travel Channel, BBC Two, and NTV7 Malaysia.
Chef Green focuses on three types of dishes on The Better Cook:
You can easily print and share recipes used on the show also. New shows are being added regularly. Tune in today at:
If you currently have an individual health insurance plan, you will be in for a big change when you sign up for your coverage in 2014.
Approximately 50% of the individual health plans that are currently being sold in the marketplace do not meet the standards of Obamacare to be sold in 2014. The reason for this is because the Affordable Care Act (ACA) sets new minimums for the basic coverage every individual health care plan must provide effective on renewals on or after January 1, 2014.
About 15 million Americans (or about 6% of non-elderly adults) currently have coverage in the individual health market. Beginning in the fall of 2013, they will be able to shop for and enroll in health insurance through state-based exchanges (aka SHOP or The Exchange) with coverage taking effect in January. By 2016, it is projected that around 24 million people will get their insurance through the exchanges, while another 12 million will continue to obtain individual coverage outside of the exchange.
Beginning in 2014, nearly all plans, both group and individual, will be required to cover an array of “essential” services regardless of if they are purchased within the exchange or not. These “essential” services will include medication, maternity, and mental health care. Many individual plans do not currently offer these benefits.
What will happen to the plans that do not meet the new minimum standards? They will more than likely disappear and you will not be allowed to renew your existing coverage on the plan you currently have. A handful of existing plans will be grandfathered in, but the qualifying criteria for a grandfathered plan is hard to meet. In order for your existing individual plan to be considered “grandfathered”, (1) you have to have been enrolled on this plan before the ACA was passed in 2010 and (2) the plan has to have maintained fairly steady co-pay, deductible and coverage rates until now.
Many insurers in the individual marketplace have already acknowledged that the majority of their existing individual plans do not meet Obamacare standards for 2014 and they are currently working to ready new product lineups for 2014.
In the future, consumers buying individual plans will be able to choose between four levels of coverage: platinum, gold, silver, and bronze.
Platinum plans will carry the highest premiums but will offer the lowest out of pocket expenses, with enrollees paying no more than 10%, on average. At the other end of the spectrum are the bronze plans, which will have the lowest monthly premiums but will have higher deductibles and copayments totaling up to 40% of the out of pocket costs on average.
Starting also in 2014, all Americans will be required to carry health care coverage or face fines. Those penalties will start at $95 per adult or 1% of the adjusted family income, whichever is greater, and will escalate in later years.
Individuals will annual incomes of up to 400% of the poverty line (or roughly $45,000 for an individual and about $92,000 for a family of four) will get federal subsidies to help defray the premium costs.
Most individual plans sold next year, even the lowest level bronze plans, are likely to charge higher premiums than today’s most “bare-bones” individual insurance plans. Many consumers feel the costs will be offset by having lower out of pocket costs and more comprehensive coverage than their current “bare-bones” plan offers.
In today’s marketplace, with deductibles of $10,000, an individual can buy a policy and then when they get sick, they may go broke because the policy leaves them with such a high level of out of pocket expenses to pay. Many insurance industry experts feel, however, that consumers may now wind up with more coverage–and higher monthly costs– than they want. As a result, some individuals may just choose to simply pay the fine instead of obtaining health insurance coverage they will not use or can not afford.
Myra L. Thompson, RHU, REBC, GBA, President of Administrators Advisory Group, has completed the National Association of Health Underwriters (NAHU) Health Care Reform Certification Course.
Myra is now a certified Patient Protection and Affordable Care Act (PPACA) Professional. This certification helps professionals understand the key technical components of PPACA and ensure they are better prepared to provide education on upcoming health coverage changes, responsibilities and requirements.
Join us in congratulating Myra on a job well done!
You may be already aware of the continuing escalation of all forms of whistleblower and retaliation claims, including the 20+ Anti-Retaliation laws enforced by special investigators from OSHA’s Whistleblower group.
On one of OSHA’s recent news releases, they state that the Labor Department filed a federal lawsuit against Duane Thomas Marine Construction and its owner Duane Thomas for terminating an employee who reported workplace violence, which is a violation of Section 11© of the OSH Act. OSHA asserts the employer fired an employee for complaining about unsafe work conditions. It may seem a bit unusual to hear that the alleged unsafe conditions involved fear of workplace violence, but who can blame an employee in today’s current environment. However, as it turns out the hazard the employee complained about was the owner!
The employee alleged that, on numerous occasions between 2009 and 2011, Mr. Thomas committed workplace violence and created hostile working conditions. He allegedly behaved abusively, make inappropriate sexual comments and advanced, yelled, screamed, and made physically threatening gestures, in addition to withholding the employee’s paycheck.
The employee, who worked directly for Mr. Thomas, reported to him that he was creating hostile conditions. On Feb 25, 2011, the employee filed a timely whistleblower compliant with OSHA alleging discrimination by Thomas for having reported the conditions to him.
On March 28, Thomas received notification of the complaint filing. Five days later, Thomas had computer passwords changed to deny the employee remote access to files and then terminated the employee. OSHA’s subsequent investigation found merit to the employee’s compliant.
OSHA is seeking back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement for the employee. Additionally, OSHA seeks to have the employee’s personnel records expunged with respect to the matters at issue in this case and bar the employer against future violations of the OSH Act. Wow…. but the usual warning: we may not know all of the facts.
The employer may have behaved badly and gave the employee the ability to make out a viable claim. Or, the employee may have exaggerated, or even made up the whole thing. But while most employee lawsuits are notorious for not being completely accurate, there must be at least some pretty bad facts for OSHA to take the action it did.
This atmosphere may or may not have presented a valid safety hazard, but guess what? Under the law, the violation is the act of terminating the employee for complaining about a safety concern. And the catch is…the concern does not have to be valid! Please note there is a different standard if the employee refuses to work because of an unfounded and unreasonable concern.
For all we know, the employee could have annoyed his boss with unfounded complaints until the boss fired him in a moment of anger…but that too is a potential violation.
The take away advice from this scenario is to eliminate two phrases from your vocabulary: “Boys will be boys” and “You had to be there”. The main problem is that lawyers and Uncle Sam will ultimately be there if one’s conduct is foolish enough.
Be sure to train your supervisors to behave professionally regardless of the setting and remind them of the many behaviors, including some of the offbeat ones, that are protected as Whistleblowing.
Our topic this month covers the new I-9 form that was recently released as well as various considerations for 2014.
Areas discussed include:
Contact us today for more information on this topic.
The Family Medical Leave Act (FMLA) allows employees to take 12 weeks of leave to care for their own or a family member’s serious health condition and up to 26 weeks for military caregiver leave. An employee can take this leave in one block, over several stretches of time or intermittently. For an employee to take intermittent leave, they need to provide a certification that there is a medical need for such leave.
While longer FMLA leaves are typically straightforward, the ability of an employee to take small increments of FMLA leave periodically can generate administrative headaches for employers and raises concerns about employee abuse of intermittent leave. The FMLA offers a number of tools (many of which are not employed) that employers can use to discourage abuse of intermittent leave. Below are eight of the best strategies for helping to get a handle on the problem.
Tip #1- Question the Original Certification
There are a number of opportunities to ensure that a certification calling for intermittent health related absences is sufficient, valid, and supports the need for intermittent leave. When an employee submits a certification for a chronic condition that will flare up and require intermittent leave (such as asthma or migraines), the HR professional reviewing the certification should consider these options:
Incomplete or insufficient certification
When a certification has missing entries or is vague, you may ask the employee the provide complete and sufficient information. The request must be made in writing and must specify the reason the certification was considered incomplete or insufficient. The employee must then provide the additional information within 7 days. If the employee fails to provide this information, leave may be delayed or denied.
Authentication and Clarification
You may contact the health care provider to ensure that they actually prepared the certification or to clarify the meaning of a response, but an HR professional, health care provider, leave administrator or management official to make the contact. The employee’s direct supervisor may not be the one who contacts the health care provider. During this process, be careful not to request more info than what is required to authenticate or clarify the form. This can be used at the recertification stage as well as the initial certification.
Tip #2- Ask for a Second Opinion
Employers who have reason to doubt the validity of an initial certification may ask for a second opinion. The physician may be one of the employer’s choosing, but it can not be one the employer uses on a regular basis. It is the employer’s responsibility to pay for the second opinion. If the first and second opinions differ, the employer may require a third health care provider certification, again at the expense of the employer. The third provider’s opinion is binding. Although there are a number of opportunities to ask for recertification of an employee’s serious health condition, you may not seek second or third opinions on recertification.
Tip #3-Ensure That All Absences Related To The Condition Are Counted
The job of managing intermittent leave is not over after an employee submits a certification that calls for sporadic health related absences. Employers must be certain that all absences related to the condition are counted against the employee’s FMLA entitlement, while at the same time ensuring that they are not counted against the employee under a no-fault attendance policy.
In larger organizations, front line supervisors must be the eyes and ears of the company and must pass along the information about FMLA covered intermittent absences to HR. This, in turn, requires employers to train supervisors to recognize absences that may be covered by FMLA.
Identifying FMLA absences may not be as simple as it may seem, in part because the US Department of Labor and the courts have held that the employee does not have to cite the FMLA in a request. If there is an existing certification, it is enough for the employee to notify the employer that they had a recurrence of the health condition covered by the certification. For first time health related absences, supervisors should be trained to notify HR any time an employee is out for more than three days with an illness, especially if an employee saw a physician during that time.
Tip #4-Require Employees To Follow Your Paid Leave Policy
Employers may require that employees use up paid leave time for their intermittent FMLA absences. In fact, all employers should include such a requirement in their FMLA policies and enforce the practice of using up paid time off during FMLA leave, in order to prevent the situation where an employee can take paid leave after their FMLA leave expires and thereby extend a leave of absence beyond the FMLA entitlement.
The 2008 FMLA regulations made it clear that employers may require employees to abide by your paid-time off policies in order to be paid for FMLA leave time.
Tip #5-Request Recertification
FMLA regulations offer a number of opportunities to seek recertification of the need for FMLA leave, including intermittent leave. Unless there are changed or suspicious circumstances, these rules of thumb apply:
As with initial certifications, the employee has 15 days to provide the recertification.
Tip #6-Follow Up On Changed Or Suspicious Circumstances
You should always keep tabs on use of FMLA leave, and may want to pay special attention to patterns of intermittent leave usage. You may seek recertification more frequently than 30 days if: a) the circumstances described by the existing certification have changed, or b) the employer receives information that casts doubt on the employee’s stated reason for the absence or on the continuing validity of the certification.
“Changed circumstances” include a different frequency or duration of absences or increased severity or complications from the illness. The regulations allow you to provide information to the health care provider about the employee’s absence pattern and ask the provider if the absences are consistent with the health condition.
“Information that casts doubt on the employee’s stated reason for the absence” may be information you receive (possibly from other employees) about activities the employee is engaging in while on FMLA leave that are inconsistent with the employee’s health condition. An example provided in the regulations is an employee playing in the company softball game while on leave for knee surgery.
A note of caution- Employers who receive information from coworkers about an employee’s actions while on leave must be certain the information they receive is credible and that the coworker has no hidden motive against the person on leave. Always attempt to independently verify information received from coworkers before taking action or requesting recertification for suspicious circumstances.
Tip #7-Control The Way That Employees Schedule Planned Treatment
Employees may take intermittent leave for treatment, therapy, and doctor visits for serious health conditions. FMLA regulations specifically require that employees schedule those absences for planned medical treatment in a way that least disrupts the company operations. When you receive a request for this type of intermittent leave, communicate with the employee about the frequency of the treatment, the office hours of the health care provider and way that the employee may be able to alter their schedule to cut down on disruptions.
Tip #8-Consider Temporary Transfers
If the need for intermittent leave is foreseeable, you may transfer the employee during the period of the intermittent leave to an available alternative position for which the employee is qualified and which better accommodates the recurring periods of leave. The alternate position must have equivalent pay and benefits, but does not have to provide equivalent duties. If the employee asks to use leave in order to work a reduced work schedule, you may also transfer the employee to a part time role at the same hourly rate as the employee’s original position, as long as the benefits remain the same.
You may also allow the employee to work in the employee’s original position, but on a part time basis. You may not eliminate benefits that would otherwise not be provided to part time employees, but may proportionately reduce benefits such as vacation leave if it is the employer’s normal practice to base the benefits on the number of hours worked.
These tips will not entirely eliminate the problem of employees trying to take advantage of the intermittent leave regulations, but they will help.
One of the ways in which the Affordable Care Act helps bring down costs for small employers is through the tax credit available to eligible small businesses that provide health care insurance to their employees. The credit significantly offsets the cost of providing insurance and with the 2012 corporate tax filing deadline rapidly approaching (March 15th), you don’t want to let this valuable tax break pass you by.
What is the Small Business Health Care Tax Credit?
Currently the maximum tax credit is 35% for small businesses employers and 25% for small tax-exempt employers (i.e. charities and non-profits). This percentage applies to tax years 2010 through 2013. Even better, in 2014 the credit will increase to 50% for eligible small business employers and up to 35% for tax-exempt employers through the new Small Business Health Options Program (SHOP) Marketplace (also known as the Exchange).
The credit can also be carried back or forward to other tax years. Since the amount of the health insurance premium payments are more than the total credit, eligible businesses can still claim a business expense deduction for the premiums in excess of the credit. That equals out to both a credit and a deduction for employee premium payments.
Who Qualifies for the Small Business Health Care Tax Credit?
To qualify for the credit, you must meet the following criteria:
To help determine whether you qualify for the credit, follow this step by step guide from the IRS.
How to Claim the Credit
You must use the IRS Form 8941 to calculate the credit.. Then include the credit amount as part of the general business credit on your income tax return. If you are a tax-exempt organization, include the amount on line 44f of the Form 990-T. You must file the Form 990-T in order to claim the credit even if you do not ordinarily do so. Remember, you may be able to carry the credit back or forward. Be sure to talk to your tax advisor for more assistance.
Your employees have struggled through the past few years of belt-tightening and downsizing all while being asked to work harder, smarter, or perhaps just longer. Experts now say there are signs of life in the job market and employees may now start doing what they have been dreaming about for years: quit. The problem is that most employers probably will not see it coming.
“Most companies are probably not fully prepared for all the…pent up turnover that is likely to come when the job market really turns around,” said David G. Allen, a management professor at the University of Memphis who has studied employee turnover.
Some employers seem to be complacent now as to IF their employees will be able to find a better job somewhere else. For as many bosses that have complained about how hard it is to find good workers, even fewer have paid much attention to keeping the good employees that they currently have.
“People are saying that they can’t find the right talent, and yet when they do they don’t take such good care of it,” said Sandi Edwards, Senior VP of AMA Enterprise, an arm of the American Management Association that helps companies improve their workforce.
Employers have not had to work too hard recently to keep good workers. The unemployment rate hit a high of 10% in the fall of 2009 as the nation was coming out of a recession and has continued to remain elevated even as the economy has slowly added jobs. The jobless rate stood at 7.7% in February 2013, with 12 million Americans actively looking for work.
This has left many workers grateful to just have a job with less focus on finding a new job even if they did not like their current one. The job market is steadily improving, but Allen cautions that it is not strong enough yet for employees to have the upper hand yet.
Some employers may be aware that the risk of losing their best employees is on the horizon, but they are not necessarily taking proactive steps to help safeguard against it.
A recent survey of 2100 CFOs found that 38% said retaining valuable staff was a top concern for the next year, but only 13% said improving morale and engagement was a top concern. Paul McDonald, Senior Executive Director of staffing firm Robert Half International feels it is a mistake to not work harder to make employees happy. “The main reason people leave is unhappiness with management,” according to McDonald.
It is not necessarily a bad thing though for some unhappy employees to quit. Typically workers who are just there because they can not find a better job are not usually the best employees. They characteristically do not perform as well or they do not engage in things that falls outside of their job description.
Peter Hom, a management professor at Arizona State University, noted that the first employees to quit when the job market improves are usually the ones that you least want to lose since the most valuable employees are often the most sought after by others.
Many researchers argue that it is not just money that keeps workers loyal, although a nice pay package and good benefits help as well. Allen said that his research has shown that workers also place a large amount of importance on relationships with their colleagues, especially with bosses.
Smart companies need to make sure they are making their employees feel valued. If they are asking for more from them then they have to engage employees more and it does not have to be just in terms of money.