The Occupational Safety and Health Administration (OSHA), a division of the Department of Labor, has issued an interim final rule implementing Section 1558, the Affordable Care Act’s (ACA) anti-retaliation provision. Section 1558 expressly prohibits an employer from retaliating against an employee for engaging in any of the protected activities under the statute, which includes, among other things, receiving a federal tax credit or subsidy to purchase insurance coverage. OSHA has also issued a fact sheet that outlines how employees may file a retaliation complaint under the ACA.
- Section 1558 provides that an employer may not discharge or in any manner retaliate against an employee because he or she:
- received a premium tax credit or a subsidy to purchase health care coverage;
- provided or caused to be provided (or is about to provide or cause to be provided) to the employer, the federal government, or the attorney general of a state information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of Title I of the ACA;
- testified, assisted, or participated, or is about to testify, assist, or participate in a proceeding concerning such violation;
- objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of Title I of the ACA, or any order, rule, regulation, standard, or ban under Title I of the ACA.
Title I of the ACA includes a range of insurance company accountability policies such as: the prohibition of lifetime dollar limits on coverage, the requirement for most plans to cover recommended preventive services with no cost sharing, the prohibitions on the use of factors such as health status, medical history, gender, and industry of employment to set premium rates, and, starting in 2014, protections against pre-existing condition exclusions.
The interim final rule establishes the procedures and timeframes for handling retaliation complaints, including OSHA’s investigation, hearing, and appeals procedures. The anti-retaliation provision adopts procedures similar to those used by OSHA to enforce other whistleblower statutes under its jurisdiction. Under the ACA, an employee has 180 days from the alleged retaliation in which to file a whistleblower complaint with the Secretary of Labor. The employee need only have a subjective, good faith, and objectively reasonable belief that the complained-of conduct violates the whistleblower protections. The employee does not, however, need to prove that the conduct complained of constitutes an actual violation of law.
Section 1558 also includes an employee-friendly burden of proof. The employee must prove by a preponderance of the evidence that his or her participation in a protected activity was a contributing factor to the employment action taken against him by the employer. The burden then shifts to the employer to prove by clear and convincing evidence—a much more difficult burden of proof—that the employer would have taken the same action against the employee if the employee had not engaged in the protected conduct.
OSHA will investigate the complaint and make a determination. OSHA’s findings become final unless appealed within 30 days. Either party may request a hearing before an administrative law judge, whose decision may be appealed to the DOJ’s Administrative Review Board. An employee would be entitled to file a complaint in federal court if a final agency order is not issued within 210 days of the filing of the initial complaint, or within 90 days after the employee receives OSHA’s findings.
If a violation is found, remedies include reinstatement, compensatory damages, back pay, as well as all costs and expenses (including attorney’s fees and expert witness fees) reasonably incurred in filing the complaint. If the Secretary deems the complaint to have been brought in bad faith, it may award the employer up to $1,000 in reasonable attorney’s fees.
Employee rights in Section 1558 cannot be waived and are not subject to arbitration, regardless of whether or not the employee has signed a mandatory arbitration agreement.
The ACA’s anti-retaliation provision adds another layer of concern to employers’ efforts to comply with the ACA’s confusing and often inconsistent obligations. Additionally, the recent trend has been for federal agencies to aggressively enforce and expand coverage under the respective statutes they administer. With healthcare being the Obama Administration’s leading policy initiative, this trend is likely to continue with enforcement of ACA protections.
For example, it is possible that the agencies will use this provision to combat employers’ attempts to reduce their workforce or reduce employees’ hours in an effort to manage employer mandate related costs. Because the ACA’s anti-retaliation provisions create additional classes of protected individuals who did not previously receive special protection, employers should make it a priority to train supervisors regarding the practical employee relations issues related to the ACA.
Article courtesy of Worklaw® firm Lehr Middlebrooks & Vreeland (www.lehrmiddlebrooks.com)
Heat illness can be deadly. Every year, thousands of workers become sick from exposure to heat, and some even die. These illnesses and deaths are preventable.
This webpage is part of OSHA’s nationwide outreach campaign to raise awareness among workers and employers about the hazards of working outdoors in hot weather. The educational resources on this website give workers and employers information about heat illnesses and how to prevent them. There are also training tools for employers to use and posters to display at their worksites. Many of the new resources target vulnerable workers with limited reading skills or who do not speak English as a first language. OSHA will continue to add information and tools to this page throughout the summer.
The U.S. Department of Labor (DOL) announced a new Web tool to help employers understand their responsibilities to report and record work-related injuries and illnesses under Occupational Safety and Health Administration (OSHA) regulations.
The OSHA Recordkeeping Advisor helps employers and others responsible for organizational safety and health quickly determine whether an injury or illness is work-related; whether a work-related injury or illness needs to be recorded; and which provisions of the regulations apply when recording a work-related injury or illness. To help employers in making these determinations, the OSHA Recordkeeping Advisor relies on their responses to a series of pre-set questions.
Here is some helpful info from OSHA on keeping workers safe during flood and tornado recovery operations:
The DOL issued a press release which provides plenty of sound advice “If you’re working outdoors, you’re at risk for heat-related illnesses that can cause serious medical problems and even death,” said Secretary Solis at stops in Anaheim, Calif.; Tucson, Ariz., and Las Vegas, Nev. “But heat illness can be prevented. This Labor Department campaign will reach across the country with a very simple message – water, rest and shade.” Each year, thousands of outdoor workers experience heat illness, which often manifests as heat exhaustion. If not quickly addressed, heat exhaustion can become heat stroke, which killed more than 30 workers last year. Heat can be a real danger for workers in jobs ranging from agriculture and landscaping to construction, road repair, airport baggage handling and even car sales. OSHA has developed heat illness educational materials in English and Spanish, as well as a curriculum to be used for workplace training.
When disasters strike, the Occupational Safety and Health Administration transforms itself and swings into technical assistance mode for affected areas. This week, after devastating storms pounded a large number of southern states, OSHA deployed teams of technical advisors to the affected areas of Mississippi, Alabama and Georgia. OSHA staff contacted incident commanders at the various county emergency management centers, as well as power companies that will be involved in the cleanup. They also do assessments of the safety needs for recovery workers. Dangers from downed electrical power lines and fallen trees are only two of the many hazards facing workers. “Storm recovery work encompasses a wide range of safety and health hazards, which can be minimized by knowledge, safe work practices and personal protective equipment, ” said Cindy Coe, OSHA’s regional administrator in Atlanta.
HR That Works Members should also review the many tools in the Disaster Planning section.
In light of the recent snowstorms in the east and in anticipation of more winter storms, OSHA wants to remind workers, employers and the general public of the hazards associated with snow removal and recovery work. Common hazards can include: electric shock from contact with downed power lines or the use of ungrounded electrical equipment; falls from snow removal on roofs, or while working in aerial lifts or on ladders; being struck or crushed by trees, branches or structures that collapse under the weight of accumulated snow; carbon monoxide poisoning from gasoline-powered generators in inadequately ventilated areas or idling vehicles; and lacerations or amputations from unguarded or improperly operated chain saws and power tools or improperly attempting to clear jams in snow blowers. Information on hazards and safeguards associated with cleanup and recovery activities after a storm or other major weather events are available on OSHA’s website in English and Spanish.
“Objectives are not fate; they are direction. They are not commands; they are commitments. They do not determine the future; they are means to mobilize the resources and energies of the business for the making of the future.”
- Peter Drucker
This issue discusses:
- Editor’s Column: Asking the Right Questions
- Labor History Quiz
- Diploma Mill Scams
- Beware of Punishing Employees Who Complain About Wages Owed
- Create a Fun Workplace
- Moving Down Maslow’s Hierarchy of Needs
- A Review of the 2008-2009 Supreme Court Term
We have also provided you with the Form of the Month
Editor’s Column: Asking the Right Questions
My years as a litigation attorney provided me with excellent insight into failed business and employment relationships. Here are a few critical questions business owners, managers, and employees can ask themselves to make sure that their thinking is on the right path:
- Is it in the best interest of the team? There’s no substitute for playing with a win/win attitude. As they say, “A rising tide floats all boats.” Putting the team first does not mean that you have to settle for mediocrity – or that you decide simply on a consensus basis. Putting the team first means that you ask the critical question: “Is this in the best interest of the team (or company, nation, family, etc.)?”
- Will this increase or decrease the level of trust in the environment? I’ve never seen a failed relationship where the parties trusted each other. Trusting partners even dissolve their relationships in an amicable manner. To make a trustworthy decision means that you have the skills or critical thinking necessary to make this decision and that you do so with good intent. That’s what makes anybody trustworthy to me. They have the skills and desires I can trust.
- Is it in alignment with our vision, mission, and goals? Sometimes there can be a true conflict among these outcomes. For example, NASA wanted to launch its shuttles in both a timely and safe manner. When the goal of timeliness overwhelmed the goal of safety, it resulted in an ethical violation – and lost lives. Because it’s very hard to know if you’re in alignment if you haven’t clearly identified your vision, mission, or goals, you might want to throw in values, commitments, and anything else on which you intend to focus.
- How does the approach feel? Often we make poor decisions because we’re running so fast that we can’t feel what’s going on. This is one reason why I often sleep on major decisions, perhaps even for a few days, before making a major decision. If after three or four days it still feels right, I’ll go for it. Unfortunately, when I forget this lesson, I end up paying the price.
- Is it legal? Are you sure or just guessing about it? What further research should you conduct?
- Should I get outside advice? There’s no substitute for professional help when making decisions. People rely on the Worklaw® Network and I try to answer their Hotline calls as part of the HR That Works program. Knock on wood, but from what I can tell, not a single one of these calls has turned out poorly for a client who followed the advice. It’s important to be able to get outside your own head when making critical decisions.
Conclusion: Follow these steps and you’ll avoid a variety of risk management problems.
Labor History Quiz
Enjoy this fun and informative quiz on labor history, created by the Alabama Department of Labor.
Diploma Mill Scams
The FTC has issued helpful guidelines to help employers avoid the pitfalls of false degrees.
Click here for more information.
Beware of Punishing Employees Who Complain About Wages Owed
IMPCO Technologies found itself in a no-win situation. Just after having moved over to a new time-clock program, two employees approached their manager, Manuel Barbosa, claiming that they were not paid overtime for a couple of hours. Since their manager was also paid on an hourly rate, he realized that if they hadn’t been paid, neither had he — so he submitted a claim for overtime to human resources. An investigation determined that the employees did not work overtime. When confronted with this finding, the manager maintained his good faith belief that he was entitled to overtime. The company, which, in fact, had paid the overtime, dismissed the manager for intending to defraud the company. He promptly sued for wrongful termination.
When the case made its way to trial, the court ruled that the company had terminated the employee for his dishonesty, not for making a claim for overtime. On appeal, the court ruled that if an employee brings forth a wage and hour complaint in “good faith,” they are thereafter protected from termination even if, in fact, they prove to be wrong. The case was reinstated, with instructions to determine if the manager had acted in good faith.
Lesson to employers: Think twice about firing any employee who complains about anything. If such a situation arises, contact the HR That Works hotline or your attorney before making a decision. Remember that, in general, if the matter complained about affects public policy (health, safety, labor laws, tax laws, etc.) the employee is generally protected from a retaliatory discharge.
To read the case (Barbosa v. IMPCO Technologies), click here.
Create a Fun Workplace
Life is short. There’s absolutely no reason why we can’t have fun while making money every day. What follows are 13 suggestions that you might want to employ at your company.
- Set up a fun committee. Put some of the “funniest” people at your organization in charge. Give them a budget — maybe $10 per employee per week and see what they can do with it for a couple of months.
- Have a community service day. Giving back to the community is fun. Whether you coordinate an event for the Boys and Girls Club, a homeless shelter, senior citizen home, a group cleanup project, etc, giving back on a group basis is even more fun.
- Set a red noses day. Whether you wear red noses, Groucho glasses, or silly hats, it’s fun to have a day like that. You simply can’t take each other seriously when you do (I can hear the chorus now, “But I want to be taken seriously!”).
- Ask for kids’ pictures. A number of companies have encouraged their employees’ children to produce pictures that they can hang up in a hallway. One company specifically created slot-like frames for 8.5” x 11” paper, which made it very easy for the parents and kids. You can’t stay in a funk very long walking past a bunch of pictures drawn by kids.
- Bring in a magician. Let them walk around and do some magic tricks for your employees. Sure, they might be distracted for all of five minutes, but they’ll have fun doing it — which is exactly the point!
- Hold theme days. Whether it’s Country/Western, 60s, 70s, or otherwise, it’s fun to not only dress up employees, but the environment as well. This goes great for St. Patrick’s Day, Fourth of July, Veterans Day, and of course, Halloween.
- Require people to provide a joke with their résumé. When one CEO told us about this, we thought it was a brilliant idea. He said reading résumés is one of the most boring things you can do. Requiring a joke certainly makes it more fun. Second, if people can’t follow instruction he won’t hire them. And third, you get an idea of what type of sense of humor they have.
- Run a cartoon caption contest. Get a cartoon, blank out the caption, and then have a contest for your employees to fill in.
- Hold food events. Eating with your friends and colleagues can be fun. Many companies will have food events around a holiday theme. Encourage people to bring a dish native to their heritage. We’ve tasted some of the best — and most unusual — food at these events.
- Stage a murder mystery. A body was just found by the water cooler. Who did it? You can easily hire actors who perform these skits in the evening to come into your company and spend an hour or two some afternoon.
- Throw a sundae party. Bring in a boatload of ice cream, nuts, and cherries and engage in some sugar overload. What could be more fun than that?
- Have story day. Have folks share a humorous workplace story either at your company or a previous employer. Issue some basic guidelines, such as no obscenities and no ridiculing any current employees, to avoid offending them. Keep a time limit of, say, five minutes.
- Get out and do something physical together. Whether it’s a ropes course, bowling, or miniature golf, it’s fun to engage in physical activity. Many companies also have softball, soccer, basketball teams, and the like as well.
There are dozens of other ways to have fun, limited only by your imagination!
Moving Down Maslow’s Hierarchy of Needs
The recent Internet Labor Outlook Survey by the Society for Human Resource Management (SHRM) included a question about the most important aspects of employee job satisfaction. The results, in order, were:
- Job security (63%)
- Benefits (60%)
- Compensation/pay (57%)
- Opportunities to use skills and abilities (55%)
- Feeling safe in the environment (54%)
- Relationship with immediate supervisor (52%)
- Management recognition of employee job performance (52%)
- Communication between employees and senior management (51%)
- The work itself (50%)
- Autonomy and performance (47%)
At the bottom of the list came items such as being in a green workplace, networking opportunities, career development, social responsibility, and so on.
These results show that when we hit tough times, our needs move down the Maslow Hierarchy.
In today’s economy, it’s very difficult to self-actualize when you’ve just been laid off from a job. Survival, security, and belonging are what employees need right now. Their egos are in check — and trying to save the world might have to wait until another day. This is one reason why I continue to support the notion of open-book management. It’s about having an authentic and honest conversation about money (an item in great demand today). Show your employees the black and white of their futures and understand how they can shape it to the benefit of all.
A Review of the 2008-2009 Supreme Court Term
Worklaw Network Member Firm Franczek Radelet’s has provided us with a great summary of recent U.S. Supreme Court cases. Labor and employment-related cases figured prominently in the U.S. Supreme Court’s recently concluded 2008-2009 term. The Court’s conservative Justices continued to play a dominant role, with Justice Kennedy often casting the deciding vote. This trend will probably continue at least through the next term, despite the replacement of Justice Souter by Justice Sotomayor.
During the 2008-2009 term, the Court took these actions:
- Considered whether an employer’s well-intentioned decision to disregard promotional test results and avoid claims of disparate impact discrimination violated Title VII.
- Held that “mixed motive” jury instructions applicable to cases arising under Title VII may not be given in discrimination cases pursued under the Age Discrimination in Employment Act (ADEA).
- Found that a pension plan qualified as a bona fide seniority system and did not violate the Pregnancy Discrimination Act by giving less credit for maternity leave taken before that law took effect than for other medical leave in calculating pension benefits.
- Determined that Title VII prohibits retaliation against employees who participate in an employer’s harassment investigation.
- Held that a collective bargaining agreement can waive employee rights under the ADEA.
- Found that a local union’s charge of litigation fees to nonmember employees was constitutional.
- Addressed the constitutionality of a state law that prohibited the use of union dues deducted from public employees’ paychecks for political purposes.
- Adhered to the “plan documents” rule under ERISA requiring that plan administrators follow the express language of plan documents in all but a very few, narrowly defined circumstances.
Read the entire report here.
Form of the Month
Independent Contractor Agreement (PDF)
If you’re sure you have a proper 1099 arrangement, use this agreement to get it in cement.
(HR That Works Users can access this form in Word format by logging on to the site).
Please click here to listen to the February 2010 Podcast.