You must properly classify those in your workplace (employee v. independent contractors)

Posted by Shawn McCammon | Employment Advice & Counseling, Employment Compliance Wage & Hour | Friday 5 March 2010 9:35 am

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I discussed the importance of properly classifying those in your workplace (i.e., employee or independent contractor) in this older post.

Matthew Nelson of Dinsmore & Shohl writes here that UPS just entered into a $12.8 million settlement in a case dealing with the improper classification of their northern California drivers. He writes that “[t]he drivers claimed they were wrongfully classified as independent contractors rather than regular UPS employees, and as a result, were denied the benefits and protections of, among other things, the Fair Labor Standards Act (“FLSA”). Particularly, the drivers focused on the FLSA’s minimum wage and overtime guarantees.”

The drivers alleged that UPS controlled almost every aspect of the working relationship; including, delivery times for packages, that UPS dictated the drivers’ dispatches, set the prices, and even controlled what the drivers wore. Essentially, the drivers claimed they were such an integral part of UPS’s business, that they could not be said to have any separate or distinct business of their own. The court allowed the case to proceed as a class action, and the group eventually included roughly 2,400 UPS delivery drivers. Mr. Nelson also notes that “UPS denied the allegations, but eventually agreed to settle the case for $12.8 million (the settlement received provisional approval, but must still receive final approval from the court).”

If you are an employer utilizing independent contractors in your business, make sure that the classification is correct and that you aren’t simply postponing liabilities to a later point time.

You must properly classify those in your workplace (employee v. independent contractors)

Employers must consider additional accommodations under ADA & FEHA when an Employee exhausts available statutory leave time

Posted by Shawn McCammon | Employment Advice & Counseling, Employment Leave & Benefits | Tuesday 2 March 2010 1:49 pm

This month, the EEOC and Sears, Roebuck & Co. entered into a court approved settlement agreement in the amount of $6,200,000.00 entitling the 235 impacted employees to over $26,000 each.  The distribution is being carried out pursuant to the terms of a consent decree approved by Federal District Judge Wayne Anderson on September 29, 2009. You can read the EEOC’s press release here.

In its lawsuit against Sears, the EEOC had alleged that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.

This large settlement reminds employers that if employees are out on some form of statutory leave, like the workers’ compensation leave at issue in the Sears matter, and the employee exhausts the leave but is still experiencing a medical condition that qualifies under the ADA or California’s Fair Employment and Housing Act (FEHA), the employer must engage in the “interactive process” to determine if a reasonable accommodation (including a possible extension of the employee’s leave) is available and can be provided to the employee without creating an undue hardship on the employer.  Otherwise, strict application of leave policies that result in the termination of an employee who fails to return to work at the exhaustion of such leave may result in significant liability for the employer.

Employers must consider additional accommodations under ADA & FEHA when an Employee exhausts available statutory leave time

Top 10 email mistakes made by management

Posted by Shawn McCammon | Business Protection, Business and Entrepreneur, Uncategorized | Friday 5 February 2010 7:37 pm

I saw this guest post by Tim Flood (assistant professor of Management and Corporate Communications at the University of North Carolina’s Kenan-Flagler Business School ) posted at the Wall St. Journal regarding the 10 most common mistakes management makes in connection with emails, and I thought I would pass it along, enjoy!

Many of us think we use email well. We don’t.

Too many of us rush, causing confusion and requiring more time to clarify misunderstandings later. We miss chances to build relationships, motivate others, close deals and convey important information.

Avoid the following ten mistakes.

1. Using vague subject lines. “Meeting,” “Update,” or “Question” provide no value as subject lines.

Maximize the subject line’s message. PDA users will get the message quickly; everyone will appreciate the clear summary. You can communicate plenty in a five to 10 word subject line: “Your Action Items and Minutes from Last Week’s Meeting” or “Sam: See You at 10:00 Tuesday with Report In-Hand?”

2. Burying the news. Convey the important points first: put dates, deadlines and deliverables in the first one to three lines of the message (if not also in the subject line). PDA limitations, time pressures, cultural distinctions and value judgments keep many readers from reading further.

3. Hiding Behind the “BCC” field. At best, the ‘blind copy’ field is sneaky and risky. At worst, it’s deceitful or unethical. Plus, blind recipients sometimes hit “reply all,” revealing the deception. Instead, post the initial message and BCC no one. Then forward your sent message to others with a brief explanation.

4. Failing to clean up the mess of earlier replies/forwards. Few readers will wade through strings of previous messages.

  • State your position clearly, even if context follows below in the email string. “Yes” helps less than “Yes, you can have the extra funding to hire 5 temporary workers.”
  • Summarize the discussion to date: “See below: R&D is looking for more time but Sales risks losing customers if we don’t act now.”
  • Force focus when necessary: “Let’s focus on cost now and revisit the morale and equity issues at our staff meeting next week.”
  • Change subject lines cautiously. Tighter, more relevant subject lines work best, but even one letter’s difference upsets inbox sorting mechanisms.
  • Cut extraneous or repetitive information.

5. Ignoring grammar and mechanics. PDAs have granted us certain sloppy flexibility, which means you’ll impress readers even more when you write precisely.

  • Follow standard punctuation, capitalization and spelling rules.
  • Think carefully about the tone different punctuation conveys. “Dear Betty,” is standard, neutral; “Dear Betty:” is professional, perhaps distant; “Dear Betty!” is personable, perhaps excessively so; “Dear Betty.” prefaces bad news.
  • Avoid over-stylizing with high-priority marks, disorienting color or complex backgrounds.
  • Avoid all-caps and excessives (like “!!!!” or other strings of punctuation).

6. Avoiding necessarily long emails. Longer messages sometimes work best; they can help avoid attachments’ hassle and security fuss. Don’t fear long emails but outline your structure and motivate reading up top.

  • Provide a ‘mapping statement’ to allow readers to skim for key information: “I’ve included information, below, on the background, costs, implementation schedule and possible problems.”
  • Emphasize the specific response you seek: “Please let me know, before Monday, how this project will impact your team.”
  • Indicate an attachment’s presence and value: “I’ve attached slides that I need you to review before our meeting; those slides identify total costs and break down the budget.

7. Mashing everything together into bulky, imposing, inaccessible paragraphs. Length does not discourage reading; bulk does.

  • Keep your paragraphs short, ideally no more than three to five lines of type.
  • Open each paragraph with a bottom-line sentence.
  • Use section headings (in all-caps) to facilitate skimming.
  • Include blank lines between paragraphs and section headings.
  • Avoid italics, boldface and other typeface changes which do not reliably carry across email systems.

8. Neglecting the human beings at the other end. Email travels between actual people, even though we don’t see or hear each other directly.

  • Praise, precisely. “Great job” takes little time and space but can work wonders. Quickly wishing someone a good weekend, at the end of an email, might perk someone up without cluttering your message.
  • Avoid conveying blame or delivering negative feedback over email. Talk to the person instead.
  • Avoid sarcasm, caustic wit, off-color humor and potentially inappropriate remarks —all of these elements tend to confuse, disorient or fall flat over email.
  • Consider using emoticons and exclamations (“!” but also “ha, ha” or “just kidding”) when they convey useful emotional context.
  • Adjust your style to suit your audience. For people who don’t know you, a terse style might seem rude; a wordy style might seem unfocused.

9. Thinking email works best. Email is not always the best way to communicate.

  • Need a quick answer from someone nearby? Stop by for a visit.
  • Want a reply to several unanswered emails? Pick up the phone.
  • Looking for more gravitas? Mail a letter.
  • Need to explain a complex or sensitive situation? Arrange a meeting.

10. Forgetting that email lasts forever. Most of us read, send and discard emails at lightning speeds. But don’t forget that emails remain on a server somewhere as easy-to-forward proof of any error, offense or obfuscation we made.

Top 10 email mistakes made by management

COBRA subsidy to continue

Posted by Shawn McCammon | Employment Advice & Counseling, Employment Leave & Benefits, Employment Legislation | Wednesday 6 January 2010 11:00 am

As many of you know, when an employee is terminated the employee may be eligible to continue their participation in the company sponsored health plan through what is often referred to as COBRA.  COBRA is a federal law that allows workers who leave their jobs to continue their former employer’s health insurance coverage for up to 18 months. Ordinarily, though, individuals must pay the entire premium, plus an administrative fee, making COBRA unaffordable for many unemployed workers. The economic stimulus package enacted in February 2009 subsidized 65% of COBRA premiums for workers laid off between September 1, 2008, and December 31, 2009. This legislation required employers to pay the 65% subsidy and then reclaim those dollars through a quarterly tax credit.

Recently, however, the government signed the Defense Department’s 2010 appropriations bill (“2010 DOD Act”) that will allow laid-off workers to receive subsidized COBRA premiums for up to 15 months, which previously expired after 9 months.

The Department of Labor’s Employee Benefits Security Administration (EBSA) has released a fact sheet explaining how the 2010 DOD Act extends the COBRA subsidy enacted during the earlier economic stimulus package. In general, the 2010 DOD Act extended the COBRA premium reduction eligibility period for two months, through February 28, 2010 and increased the maximum period for receiving the subsidy from 9 to 15 months.

Also, the fact sheet reviews the eligibility requirements for the subsidy, the new period of coverage, and notice requirements that plan administrators must provide. The fact sheet explains that plan administrators are now required to provide notice about the changes made to the COBRA premium subsidy provisions to individuals who have already been provided a COBRA election notice, unless the election notice included the updated premium reduction information. The notices must be given to eligible individuals by February 17, 2010. Individuals who have been terminated on or after October 31, 2009 and will lose health coverage must be provided this notice “within the normal timeframes for providing continuation coverage notices.” Those who had reached the end of the reduced premium period before the legislation extended it to 15 months must be provided this notice within 60 days of the last day they were eligible to receive COBRA premium assistance under the old rules.

COBRA subsidy to continue
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