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Thursday, May 21, 2015

Taking a Break from Blogging

One day I looked up and I had only posted twice since April of 2014.  The reason is simple: it no longer feels safe.  The number of Trolls looking to make a huge deal of social media missteps has grown exponentially since I first began blogging.  The number of companies with policies against social media missteps has grown, and those policies carry real consequences.  Finally, I used this blog for communications with the Thomas Nelson workforce of which I am no longer a leader or member.  The combination of these factors makes blogging all risk and no benefit.

The dilemma for me personally is that my old content, my "backlist" as we would say in publishing, still gets several hundred to a couple of thousand hits per month.  One day last month I had 700+ hits on an old article in one day.  There seems to be "an" audience, but not one I have been able to successfully define.  But again, unless I were to try and monetize that audience and make a living blogging, the risk to my other pursuits outweighs any benefit of just getting my opinion off my chest.

So, for the time being, I am off the air.  There will be a time in the future when I can say what I wish without concern.  When that happens, if there is an identifiable audience and enough demand, I'll go back to adding regular content.  Until that time I will leave the old content up for whomever wishes to see it.

In the meantime, if you have HR questions in general, or questions about any of my backlist, feel free to drop me an email at my public address,

All the best,


Friday, February 27, 2015

DOL Issues Final Rule on FMLA and Same Sex/Common Law Couples

Since July of 2014 the Department of Labor has been soliciting public comments on proposed rule changes to the Family and Medical Leave Act (FMLA) regarding same-sex and common-law marriages.  It recently announced that the Final Rules have been written and will become effective March 27th, 2015. Those rules replace interim guidance that had been in place for some time since the Supreme Court's striking down the Defense of Marriage Act (DOMA).

First you might ask why this was necessary.  Some will of course say that this is part of the federal government's push under a liberal administration to redefine marriage.  That is hardly the rationale.  Currently 37 states and 18 foreign countries recognize same-sex marriages, but the FMLA is a federal law that applies in all US states and governed territories.  The potential for confusion was significant. More and more young couples are cohabitating and raising families outside of a traditional marriage. The FMLA, were it not to consider the needs of these couples, would not equally extend the protections that Congress has envisioned to all workers.

For example, if a same-sex couple is married in a state that recognizes their marriage, then the FMLA would logically apply to their employment relationship lest employers in that state treat two similarly-situated married employees differently.  Similarly should that couple then move to a state which does not recognize their marriage, then the question of whether or not they lose that protection becomes a question. Common law couples, many together longer than some marriages last, have the same personal and family medical situations and needs for time off as those of us in traditional marriages. 

Throw into these situations any children that these couples may have, and who has federal protection during times of their care, and you can see the potential for conflict.  Clarity on the rights and expectations of both employers and employees was needed.

Here are the highlights.  To have FMLA protection the couple would need to have been married or obtain common law status in a state or foreign country where their marriage was recognized.  The Rule changes the definition of spouse to any person entered into a legally valid marriage including common law arrangements.  "Place of Residence" has been amended to "Place of Celebration" to be inclusive of various types of marriages.  Also the definition of covered children encompasses those parented in loco parentis; in other words, in situations where the day-to-day parenting and financial support takes place regardless of biological relationship. 

For HR professionals and employers the way forward is clear.  If you have an employee living in a family situation where they have a partner, same sex or opposite, raising children in a family setting then FMLA most likely applies to them.  You can split hairs as to what type of marriage and where it was celebrated, but the risks far outweigh the benefits.  Those risks include not only litigation but adverse publicity and brand damage, both within and outside your workplace, from being seen as a discriminatory employer.  Best to give them the Physician's Certification if they have been with you long enough to be eligible, then administer the leave according to the medical facts.

As always, comments are welcome.

Tuesday, April 22, 2014

Don't Elect COBRA! Buy Exchange Coverage

One of the little-talked-about benefits of the Affordable Care Act's Insurance Marketplace is that people who lose their health coverage during the year become eligible to sign-up.  The same COBRA qualifying events that make you eligible to elect COBRA also make you eligible for mid-year sign ups on state or federal Exchanges.  Employers can charge you 102% of the full premium for your existing coverage, and generally employees pay about 1/3 to 1/2 of the full premium.  COBRA premiums, then, are sure to be anywhere from double to triple what you normally pay.

Exchange coverage will be 100% of the full premium.  The coverage pool is also larger than most employers.  Chances are your premiums will be the same or less than COBRA coverage.  However depending upon your income you could be eligible for a subsidy which could make the coverage less expensive.  Another advantage is that if you did not elect a certain coverage as an employee you cannot elect it under COBRA.  Exchange coverage, as I understand it, has no such restrictions.

Before electing COBRA check out your state or federal exchange.  It will almost certainly cost you the same or less and provide you more flexibility in what you choose to elect.

Saturday, April 12, 2014

How to Construct Great Interview Questions

Interviews are possibly the most important thing a manager will do.  Hiring the right people, and keeping the wrong fit out, is one cornerstone of good performance for the whole team.  A poor contributor, or poor attitude, or both will drag down a whole team.  All-stars properly motivated left the whole group. Bad interview technique can also lead to legal exposure if questions drift into non-job-related subjects. I have found that this happens far more out of ignorance and lack of planning than prejudice.

With this in mind here is how to construct interview questions that will keep you legal and focused on the search for great people. Plan your interview questions into two groups:

1. Task-based
2. Probing for Past Performance and Attitudes

Task-Based Questions

You want to know if the candidate can perform the essential functions of the job.  To do that you want to marry the duties of the job with the prepositional phrases from Behavioral Interviewing.  Here's how:

1.  Start with the job description.  If you don't have one, or the one you have is poorly-written and 5 pages long (hey, it happens), write down the 4-6 most important aspects of the job.
2. Apply these Behavior Interviewing phrases in front of each of the most important aspects:
     * Give me an example of a time when you... (insert task)
     * When in your career have you...(same thing)
     * At what former job have you ever...
     * Can you think of a time when you have.....

These leading questions do two things: they avoid the "yes" or "no" answer from the candidate and they give a good indication of whether or not the person has the experience you seek.

Probing Questions

Here you want to know how people think or lead; what they prefer in the type of jobs or supervisors, and where they want their career to go.  These are all legal and will give you an indication of how well the candidate fits the job you have for them.

1. What accomplishments in your career are you most proud of?
2. Without naming names, tell me about the best supervisor you ever worked for? What made them a great supervisor?
3. Without naming names, lets reverse the question.  Tell me about the worst supervisor you ever worked for and why you feel that way about them.
4. Describe a time when you had a really bad problem at work and how did you resolve it?
5. If we called your last employer what would they say about you? (you'll be surprised how much the prospect that you might call will cause a very candid answer)
6. Other than a paycheck, why do you do what you do for a living?  (you are looking for passion)
7. Of course we have other candidates, so tell us why we should hire you?
8. What questions do you have for me? (this will measure preparation which indicates interest)

Together this gives you 12 - 14 great, job-related and legal questions that provide insight into the candidate.  It is easier, always, to know what you can say than to remember all the HR warnings about questions you should not ask.  This list can also be used by a single interviewer or divided into two or three interviews for structured panel interviews.

Please use these with my compliments.  Also, if you are scheduled for an interview with me and are doing research, don't get too comfortable.  I have plenty more.  :-)

Thursday, January 16, 2014

My Opinion: Plan Now to Discontinue Executive Benefits Next Renewal

Part of my first-year's learning in Senior Living has been discovering that some communities, even with small workforces, have special benefits for their management teams.  This will become problematic and potentially cause employers to pay penalties once the Affordable Care Act is fully implemented.  Since most plans are based upon the calendar year and have renewed for 2014 now is the time to plan and communicate a discontinuation of those plan options. The regulations have not yet been written and so implementation is delayed: this gives employers time to eliminate those plans for 2015.

Section 2716 of the Affordable Care Act prohibits discrimination based upon salary in the provision of benefits under a pre-tax benefits plan. In layman's terms, your highly compensated management cannot receive better benefits than the rest of your employees and your plan still enjoy pre-tax status.  For the definition of "highly compensated employee" the government could have used a simple definition ($115,000 for 2014) but of course, why do something simple regarding the ACA? 

Instead of the simple definition the Act uses the test included in Section 105(h)(5) of the Internal Revenue Code.  Under this test an employee is "highly compensated" if any of the three criteria below are met:
  1. The employee is one of the five highest paid officers in the company.
  2. The employee is a shareholder who owns more than 10% of the employer's stock.
  3. The employee is among the highest paid 25% of employees.
In small workforces virtually all the management team will be included in #3 above.  In privately held "mom and pop" communities where the Executive Director has equity, it is possible to meet #2.  In privately held communities where the owner or spouse are employed they may meet all three criteria.

While this test applies primarily to self-insured plans, the news for fully insured plans is worse.  Those tests have not ye tbeen issued but will include a formula to account for part-time employees.  Remember, the Employer Mandate penalties under ACA were delayed for this year because the definition of an eligible part-time employee has not yet been settled.  Employers with fully-insured plans who want to keep an executive tier of coverage therefore have no way of knowing if their plan will pass or be determined as discriminatory.

If you already have a separate Executive Plan that is grandfathered in you may keep it.  However if you simply have one plan and give your executive team better pricing or benefits your plan will probably not pass testing under Section 2716.  Your best course of action is to communicate this now and give your management team time to adjust to the loss of benefits.  Since this change will save the employer money, you may also want to consider repurposing those savings into increased salary or paid time off (both still unregulated) as compensation for lost benefits.

Wednesday, January 01, 2014

Wait Just a Minute: the Affordable Care Act May Work

The withering criticism of the Affordable Care Act ("Obamacare") has led many to believe that it is a disaster, that it will never work, etc...  If you only watch conservative television or listen to conservative talk radio and politicians then you might be convinced of this "fact".  Best to hang on for a moment.

One of the criticisms is that "nobody is signing up" as often-reported on Fox News which is omnipresent in the YMCA where I work out.  Early in the enrollment process there were daily reports of "single digit" enrollments in some states.  This was due to the HHS software being as bad at reporting as it was at enrolling.

The software bugs are being fixed and enrollments are happening, and this week no more conservative voice than The Washington Post reports that HHS may actually meet their first enrollment goal of 7 million enrollees for 2014.  If that target is attained, given the large amount of negative publicity, the daily rants from conservative media, the software debacle and a Republican campaign last fall to discourage enrollment by uninsured Americans, it will be a significant accomplishment.

Personally I have seen two anecdotal situations that affirm this forward momentum.  I have a family member who was unable to afford coverage for himself and his wife because of her preexisting conditions.  Last month they secured subsidized coverage for the two of them for $120/month.  The first month of Exchange enrollment I had a friend, a small-market realtor, who looked on line and complained to me that single coverage for her would be over $600/month.  After working through the repaired website and getting to the subsidy calculations, she secured free coverage for a bronze plan.

Time will tell what full implementation of the ACA brings.  Right now it is still a political football with supporters looking past every flaw and detractors ignoring every success.  Looking at it impartially (although I am on record as supporting universal, non-employer-sponsored coverage) the program has a fighting chance to overcome Kathleen Sebelius' incompetence and the Republican opposition machine.  It will certainly have unintended consequences: all changes of this magnitude do. The ultimate question will be 2-3 years down the road when we attain full implementation, see the consequences both intended and unintended, and judge for ourselves if this was or was not a societal step forward.

Tuesday, December 10, 2013

What Does It Really Mean to Be in a Right to Work State?

In a Right to Work state an employee's employment is at the will or whim of the employer unless there is a contract such as an individual Employment Agreement or a union Collective Bargaining Agreement.  That is technically correct, but widely misunderstood in its practical application.

Among my liberal friends this is a controversial topic.  The idea that in a Right to Work state an employee can be fired for any reason at any time is unconscionable and violates the dignity of the worker.  For my conservative friends who run businesses there is no controversy: they believe the law entitles them to make any decision they choose.  Both are wrong.

At the heart of this misunderstanding is one huge exception to Right to Work: it does not apply to state or federal discrimination or harassment laws.  These laws are the majority of risk in employment. While retaining or terminating an employee may be at the complete discretion of the employer, if that discretion is abused such that the employee is discriminated against based upon some protected class status then the employee has full recourse through state or federal agencies and through the courts.

If you are employed in a Right to Work state you have the same rights regarding equal treatment under state and federal anti-discrimination law as you would in any other state.  If you employ or supervise people in one of these states you have about as much protection under Right to Work as if you rolled yourself in bubble wrap and jumped off a bridge.

When making employment decisions I would advise you the same way I advise my clients: to have an Employee Handbook, follow it, and never let Right to Work enter into your thinking.  The real definition of Right to Work: "A false sense of security that causes you to write large checks."