EverythingPeople This Week!

11

Dec

2018

Does Implicit Bias Still Impact HR?

Author: Anthony Kaylin

Unconscious or implicit bias, the unconscious attitudes that influence how people perceive and act toward each other, has tremendous impact on employment.  There are a number of studies showing its affect on everything from hiring to perceptions of competence.  For example, the programmers that built Amazon’s recruitment engine somehow influenced bias – they had to sunset the new tool before it even launched since it was biased against women.

4

Dec

2018

The Changing Landscape in OFCCP Land

Author: Anthony Kaylin

OFCCP is moving at light speed to make changes as to how it operates.  There have been a number of new directives in 2018 already, “righting the ship” from the previous administration.  Now comes three new directives for Fiscal Year 2019 (DIR 2019-01, DIR 2019-04, and DIR 2019-03).  These directives are officially changing the way OFCCP is doing business and how audits will be handled in the future. 

27

Nov

2018

Defending Equal Pay Claims Has Become More Complicated

Author: Anthony Kaylin

For employers defending an equal pay act (EPA) discrimination claim, the “factor other than sex” affirmative defense generally prevails, except when it doesn’t.  And lately, courts have been more reluctant to accept the affirmative defense. 

20

Nov

2018

Employees Could Eventually Experience Higher Taxes from Tax Cuts

Author: Anthony Kaylin

With the new tax law (The Tax Cuts and Jobs Act of 2017 or TCJA), the tax brackets were reduced so many would recognize greater cash in their wallet at the end of the day.  However, what was not highly publicized was that the TCJA mandated a change from the Consumer Price Index for All Urban Consumers (CPI-U) to the Chained Consumer Price Index for All Urban Consumers (chained CPI). The impact of this tax law change is not beneficial to taxpayers but will be to tax revenues in the...

13

Nov

2018

How Does a Divided Congress Impact Employers?

Author: Anthony Kaylin

With the election over and the results showing Democrats taking over the House of Representatives and the Republicans retaining Senate control, what does it mean for employers?  It is expected that the House Democrats will push a pro-labor and regulatory agenda as well as an aggressive oversight of the Executive Branch.  The Senate Republicans will likely continue staffing the Federal courts, which will have a long-term impact on employment cases, and thus employment policy.

6

Nov

2018

When Employee Rights Collide in the Workplace

Author: Anthony Kaylin

Terry Bonnette, Partner, Nemeth Law PC presented on this topic at our Annual HR Conference last March.  It is an important issue today as a number of factors have risen, making HR shake their heads in confusion.  As seen in the news, the most vexing issue for employers today is how gender identity and sexual orientation rights are competing with religious beliefs and rights.  With these issues spilling into the workplace, it is important for HR to have a game plan when these...

29

Oct

2018

Trump Administration Making Benefits Easier for Small Businesses

Author: Anthony Kaylin

Last week was a big push by the Trump administration to reduce benefit burdens on small businesses by re-energizing Health Reimbursement Accounts (HRAs) and 401Ks.  These efforts will make an impact towards coverage of small employer employees with both healthcare and 401K access and allow these employers to be more competitive in the war for talent.

23

Oct

2018

Joint Employment is Gearing Up, and It is Still Confusing

Author: Anthony Kaylin

Currently, the definition of joint employment is all over the place, depending on the agency. Before 2009, joint employment essentially required direct control of the other employer’s employees.  In other words, if the joint employer was controlling all work situations such as hiring and firing, joint employment was likely to be found.  Under the Obama administration, joint employment was based not just on direct control, but indirect control.  In other words, signing the...

16

Oct

2018

What is the Difference Between an Offer Letter and an Employment Contract?

Author: Anthony Kaylin

Although an offer letter and an employment contract have similarities, they are very different.  An offer letter has very basic terms and conditions of employment, generally subject to completion of a successful background check and/or medical exam, and states that employment is at-will.  In other words, the employee can walk anytime, although notice requirement is requested, and the employer can terminate for any reason at any time. This term will likely prevent, in a dispute...

9

Oct

2018

Could the Future of Healthcare be Referenced Based Pricing Programs?

Author: Anthony Kaylin

With health care costs growing more than two times the rate of inflation consistently over the years, and employers growing weary of increasing deductibles and cost shares, an old idea has resurfaced for employers:  Referenced Based Pricing (RBP) programs.  Under Obamacare, the transparency of costs among providers has become more commonplace, thereby enabling these types of programs.

2

Oct

2018

Should an HR Rep be Fired for Allegedly Helping an Employee Sue the Company?

Author: Anthony Kaylin

Andrea Gogel was hired in 2008 to be the manager of the Team Relations Department of Kia Motors Manufacturing of Georgia, Inc.  During her time at Kia, Gogel heard many complaints about how women and Americans were treated at the Korean owned company. She believed she experienced similar treatment herself, and in her view, had been denied a promotion because she is a woman and an American.  She investigated these complaints and followed Kia’s procedure.   In 2009 Kia...

25

Sep

2018

OFCCP Issues Two New Directives: Transparency and Ombud service

Author: Anthony Kaylin

In the last month, OFCCP (Office of Federal Contract Compliance) has been very active issuing a number of directives. Two new ones were released last week.

18

Sep

2018

Can Managers be Problem Employees?

Author: Anthony Kaylin

Although cross functioning teams are the rage, and at times rightly so, it appears that too many bosses are like the adage too many cooks.  According to a Gartner survey, more than two-thirds of employees around the world say they have to consult with more than one boss to get their jobs done.  What does that mean?  It means that these employees waste significant amounts of time waiting for guidance from senior leaders.

11

Sep

2018

Does an Employee Need to File and Resolve an EEOC Charge Before Filing a Discrimination Suit?

Author: Anthony Kaylin

The answer is no, according to the 10th Circuit Court of Appeals (which covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, plus those portions of the Yellowstone National Park extending into Montana and Idaho).  This decision brings it in line with other circuit courts of appeals. 

4

Sep

2018

Service or Emotional Support Animals as ADA Accommodations?

Author: Anthony Kaylin

From the service dog to the emotional support peacock and ferret, employers are receiving more requests from employees who want to bring these animals to work.  Title I of the ADA prohibits disability discrimination in the employment context and requires employers to provide reasonable accommodations to applicants and employees.  But Title I is silent in reference to service and emotional support animals. 

28

Aug

2018

OFCCP Comes Out with New Compensation Analysis Directive

Author: Anthony Kaylin

On Friday August 24th, the Office of Federal Contract Compliance Programs (OFCCP) issued three new directives, the most important being the replacement of Directive 307 which covered how compensation reviews during audits should be conducted (Directive 2018-05).  OFCCP first laid out guidance in 2006 as to how the agency would approach compensation reviews.  It was highly systematic and followed equal opportunity law.  In 2013, the agency issued Directive 307, which laid out a...

21

Aug

2018

When is a “Direct Threat” a Defense Under the ADA?

Author: Anthony Kaylin

There are times when an employee’s disability is problematic to accommodate.  For example, an employee with a latex allergy working in a latex environment.  If it is not reasonable for the environment to change via an accommodation, how does the employer demonstrate that the employee, by working in such an environment, would be subject to a direct threat of imminent harm to him/herself?

14

Aug

2018

New Approach to Rising Health Care Costs – Cut the Middleman

Author: Anthony Kaylin

Employer health care spending has grown from 6% of total wages in 1988 to more than 12% in 2018.  The Centers for Medicare and Medicaid Services (CMS) estimate that this growth will continue, with national health spending projected to be 20% of the economy by 2026.  Employers are seeking innovative approaches to keeping healthcare costs down.

7

Aug

2018

OFCCP Discusses the Future Direction of the Agency at the ILG National Conference

Author: Anthony Kaylin

At the Industry Liaison Group (ILG) National Conference on August 1, Acting Director Craig Leen of the Office of Federal Contractor Compliance Programs (OFCCP) discussed in his keynote presentation the four pillars of OFCCP’s future actions. 

31

Jul

2018

Immigration Policy Impacts Employers

Author: Anthony Kaylin

At a time where unemployment is 4% and the need for skilled workers is at a premium, a source for these workers is being slowly shutdown.  The immigration issue is an important one for Americans and played a decisive role in the presidential election.  However, the barriers being raised for business visas could have a negative impact in the long-run for American businesses.

24

Jul

2018

Is a Full-time Schedule an “Essential Job Function” for an HR Generalist?

Author: Anthony Kaylin

Is a full-time work schedule an essential function of a job?  Many would think so when hiring full-time employees or providing accommodations under the Americans with Disabilities Act (ADA).  Yet the “modern” workforce is not the same as before.  Time to complete work may not require 40 hours per week.  A recent Sixth Circuit Court of Appeals (which covers Michigan) decision questioned the assumption of a required 40-hour work week as an essential job function.

17

Jul

2018

Quick Hits - July 18, 2018

Author: Anthony Kaylin

NLRB rescinds Persuader Rule: The National Labor Relations Board (NLRB) has filed for a full repeal of the Obama Administration’s March 2016 Persuader Rule.  The rescission, which will be formally published in the Federal Register today, will take effect 30 days after publication.

17

Jul

2018

Attacks on ACA Could Lead to Higher Employer Healthcare Costs

Author: Anthony Kaylin

A lawsuit by 20 states was filed in federal court in Texas challenging the constitutionality of the Affordable Care Act (ACA) in February.  Texas argues that last year’s tax reform law, which stripped the ACA of the individual mandate, made the ACA unconstitutional.   If the individual mandate is stripped away, the Department of Justice (DOJ), agreeing with Texas, argues that two other key parts of Obamacare should fall with it.

10

Jul

2018

Judge Kavanaugh Nominated to the Supreme Court – What Does it Mean for Employers?

Author: Anthony Kaylin

On Monday President Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit.  Judge Kavanaugh is a Yale undergraduate and law school graduate and had clerked for Justice Kennedy.  Judge Kavanaugh worked for Independent Counsel Kenneth Starr, who led the investigation that ultimately resulted in Clinton’s impeachment. Judge Kavanaugh was a lead author of the Starr Report.   He was then White House Staff Secretary to...

26

Jun

2018

How Does the NFL No-Kneeling Policy Impact Employers?

Author: Anthony Kaylin

Given all the controversy surrounding players kneeling when the national anthem is played, the NFL decided to directly rule on the issue.  On May 23, 2018, the NFL issued a new rule that will require all players on the field to stand for the national anthem and impose fines to teams whose players, coaches, or staff fail to follow the new rule.

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