wellpoint june hr training · • green card process has been filed for at least one full year...

WellPoint June HR

Training

Presented by Seyfarth Shaw LLP

Immigration Pain Points

Presented by: James W. King

©2014 Seyfarth Shaw LLP

Overview

• Immigration Process

• Visa/Work Permit Types

• Green Card Processing

3


The Alphabet Soup of Immigration

• CIS (applications filed)

• CBP (airports and borders)

• ICE (investigations and I-9s)

• DHS (parent agency)

• DOS (embassies and consulates)

• DOL (first stage green cards)

• NIV (nonimmigrant visa)

• IV (immigrant visa)

4


Work Permit Process Overview

• CIS Petition Approval (if required)

• DOS Visa Issuance

• CBP I-94 Issuance

5


I-797 Approval Notice

6


VISA Stamp

7


I-94 Card (No longer issued)

8


I-94 Admission Record

9


Tear-Off I-94 Card

10


Pain Point: Short I-94 Card

• Short I-94 may be issued

due to passport or visa

expiration or CBP error

• Potential for severe status

issues

• Visa voided

• 3/6 year bar to reentry

11


Pain Point: Short I-94 Card

• Solutions

• Send I-94 record to Seyfarth

• Request nunc pro tunc approval

• If less than six months, travel to

get new stamp and reenter

12


Most Common Work Permits

• H-1B Professional

• TN Canadian/Mexican NAFTA Professionals

• E-3 Australian

• F-1 Students

13


H-1B Work Permits

• General Eligibility

• Requires degree linked to job position

• October 1 Cap

• Applies to first-time H workers (change of status)

• Degree (or Equivalent Experience) Required

• Prevailing Wage Required to be Paid

• Location-specific

14


Pain Point: H-1B Prevailing Wages

• Similar to green card PW issues, but more flexibility for

H PW because DOL is not required to approve the use

of an alternative wage

• For most jobs, requiring 5+ years of experience puts

PW at highest level – but we can generally manage that

through an alternative PW

15


Pain Point: H-1B Timing Issues

• Change of Employer (COE) – H-1 Transfer

• Takes 3 weeks to get case filed in a best case scenario

• Some employees insist on approval before joining WLP – will add

about two weeks to time-line

• Risk that CIS will deny extension request if employee not

currently employed at time of filing

• Employee would have to leave U.S., get new H visa stamp and then

reenter in order to work

16


Pain Point: Hiring an H-1B Worker

• If hiring a candidate:

• with less than 18 months remaining in H status

• without college degree

• for job that does not require degree

17


Pain Point: H-1B Work Site Change

• If work site changes or if new work site is added:

• Must file LCA

• May need to amend H petition

18


Pain Point: H-1B Max-Out

• H-1B is limited to six years IN TOTAL unless:

• Recapture time is available

• Green card process has been filed for at least one full year

before max-out date

• Can get annual extensions

• Green card PERM and I-140 are approved and green card

numbers are not current

• Can get three-year extensions

19


Pain Point: H-1B Max-Out

• If above options not available, then gap will result – gap

in both status and in work authorization. Solutions

include:

• Switch to dependent status if spouse is on work permit (but

cannot work for WLP)

• Depart U.S. and work from foreign country (but tax,

compensation and other issues) until green card PERM pending

for one year

• May be eligible for a different work permit (TN, E-3, L-2 spousal

EAD)

• Premium process green card I-140 if not current so that 3-year

extension is available ASAP

20


TN Work Permits

• Canadian or Mexican

• Only Certain Jobs

• Accounting; IT; Engineering; Sciences; Others

• Fast Process

• Duration 3 Years

• Conflict with Green Card

21


Pain Point: TN Work Permits

• Risk of denial if a relatively weak case is presented at

the border, with result that employee is then stuck in

Canada/Mexico. Solution:

• Process weak cases via inland (CIS) filing with premium

processing

• Risk that admission will be refused after international

travel if green card stage two has been filed. Solution:

• Convert to H-1B if possible

• Restrict international travel until AOS filed and independent travel

document is issued.

22


E-3 Work Permits

• Australians only

• Degree (or Equivalent Experience) Required

• Prevailing Wage Required

• Location-specific

• Duration 2 years / renewable indefinitely

• Conflict with Green Card

23


Pain Point: E-3 Work Permits

• No ability to premium process

• No automatic extension of employment authorization

• This means status gaps are LIKELY when E-3 status is

renewed.

• Solution:

• Travel back to home country to process E-3 renewal

24


F-1 Students

• Practical Training (PT)

• Pre-graduation – Curricular PT (CPT)

• Post-graduation – Optional PT (OPT)

• One year only (unless STEM and E-Verify, and then you get an

additional 17 months)

25


Pain Point: F-1 Students

• Need Exit Strategy

• File for cap-subject H-1B

• Cap-gap available for F-1 students with EAD valid as of April 1

cap filing date (bridges to October 1 effective date of H status)

• Cap gap does NOT allow for international travel

26


Pain Point: F-1 Students

• F-1 students who do not get an H-1B number often go

into CPT status

• CIS is starting to question bona fides of CPT “mills”

• Certain schools lose accreditation, with the result that

CIS (unfairly) deems the student not to have maintained

status

27


EAD – Employment Authorization

Document

• Who gets them?

• F-1 students

• AOS applicants

• L-2 and E-3 spouses

• H-4 spouses (soon)

28


Pain Point: EAD Renewals

• Gap in work authorization

unless EAD renewal is in

hand

• Cannot premium process

renewal request

• Cannot file renewal request

earlier than 120 days prior

to expiration

29


Pain Point: EAD Renewals

• Solutions:

• Track expiration dates closely

and file at day 120

• Even then, there is risk of CIS

delay (taking longer than 120

days to adjudicate) and of lost

mail/misdelivery

30


Immigrant Visa (Green Cards)

• Three Stage Process

• Short-cut for L-1 Managers

or Outstanding

Researchers/Extraordinary

Ability

• Process May Last Several

Years

• Faster Track for Managers and

Outstanding Researchers/

Extraordinary Ability

31


Green Card: Normal Process

• Labor Market Test (PERM)

• Six months pre-filing activities

• Eight month processing time

• Preference Petition

• EB2 (BS + 5 OR MS)

• EB3 (anything else)

• Adjustment or Consular Processing

• Family can work (EAD)

32


Pain Point: PERM Prevailing Wages

• Labor Market Test – Prevailing Wage (PW) Issues

• DOL assigns PW

• PW MUST be paid when green card is approved

• PW is based on minimum education and years of experience

required for the job

• Generally, requiring 5+ years means the highest DOL PW

• DOL typically selects highest possible wage

• Can try to get alternative PW based on non-DOL surveys, but

difficult to get DOL to accept alternative surveys

• Re-filing wage request causes case delay (takes 90 days)

33


PERM Recruitment

• Primary Recruitment

• Two Sunday newspaper ads

• Internal WellPoint job posting (10 consecutive business days –

no holidays counted)

• State job bank posting (30 days)

• Secondary Recruitment:

• WellPoint website

• Employee referral program (need nexus to job posting)

• Third party website

34


Pain Point: PERM Recruitment

• Internal Posting Notice must be up for ten BUSINESS

days, so counting holidays can result in case denial

• Recruitment costs are high

• WLP must consider and notify former employees laid off

in same area/occupation within six months prior to

PERM filing

35


Pain Point: PERM Candidate Assessment

• Must interview applicants who appear to meet high-level

requirements of job

• Cannot reject applicants for subjective (but arguably

valid) reasons

• Cannot reject applicants just because the current

foreign national employee is better qualified – can only

reject if the applicant does not meet the minimum

requirements

• Assessment process becomes time-consuming and

resource-intensive

36


Pain Point: Meeting Job Requirements

• To get green card, foreign national employee must

prove he/she also meets all of the minimum job

requirements by:

• Submitting detailed and precise employment confirmation letters

• Using only work experience and skills acquired BEFORE being

hired by WellPoint

• Issues include:

• Difficulties in securing appropriate confirmation letters

• Not meeting strict requirements for WellPoint job at time of hire

(and thus under PERM rules cannot qualify for job)

37


Pain Point: Meeting Job Requirements

• Sometimes we can use work experience gained with

WellPoint to satisfy the PERM minimum requirements

• Where experience was gained in a role materially different from

the green card role, the experience in the different role can in fact

be used

• Referred to as “50 percent different” analysis

38


Pain Point: Three-Year Foreign Degrees

• Candidates with three-year foreign bachelor degrees

present special challenges

• Three-year degree is not equivalent to U.S. bachelor degree

• Thus, employee will not satisfy job requirement of bachelor’s

degree and therefor need to carve out special exception to say

“we are willing to accept a three-year degree”.

• Resulting risk that DOL will data mine PERM applications and

take position that accepting a three year degree makes the job

position ineligible for EB2 because EB2 requires a four-year

bachelor’s degree – thereby potentially impacting other

employees’ applications.

39


Pain Point: EB2 Classification

• Many employees push for EB2 classification. Issues

include:

• Maintaining consistency/integrity for job requirements

• Needing to base green card application on future role that is in

fact EB2 eligible. This complicates the case because:

• The required wage will likely be higher than current wage

• Employee must satisfy job requirements for future role as of date of

PERM filing

40


Pain Point: PERM Audits

• PERM Audit Risk

• Random selection

• Excessive requirements

• Tailored requirements

• Market-based issues

• PERM audit means:

• Delayed approval by about one year

• Additional costs

• Need to support job requirements via equity analysis

41


Pain Point: Age-Outs and Promotions

• Employee’s child is ineligible for derivative green card

status unless under 21 and unmarried at time of filing

green card stage three

• If employee is promoted into a job position that differs

significantly from the green card job position, WellPoint

may have to re-start the green card process

42


Pain Point: Green Card Retention

• Abandonment of Green Card

• Living outside the U.S.

• Failing to file U.S. income taxes

• Retention of Green Card

• Maintain residence and ties

• Travel frequently

• Get Reentry Permit

43


Pain Point: LOE Required by WellPoint in

Immigration Processes

• H-1B Work Permits:

• Manager – relatively light; may need to approve wage increase

• HR – relatively light; needs to complete Public Access File and

review/approve paperwork

• Employee – relatively light; needs to provide documents and data

for case

44


Pain Point: LOE Required by WellPoint in

Immigration Processes

• PERM/Green Card:

• Manager – heavy at front-end of PERM -- must attend one-hour

call, analyze/assess case documents, weigh in on candidate

assessment; may have to perform 50 % difference analysis

• HR/Legal/Recruiting – heavy during PERM -- must attend call,

review case documents, arrange recruitment, screen

applications, conduct telephone screenings, etc.

• Employee – heavy during PERM -- must document work

background, obtain employment confirmation letters, review case

documents; heavy during green card stage three (Adjustment of

Status) – must collect biographic and status documents, provide

detailed information, undergo medical exam, review case

documents, etc.

45

FLSA Regulation

Update

Presented by: Heather Havette


FLSA Regulation Update

On March 13, 2014, President Obama issued a

Presidential Memorandum directing the Secretary of

Labor to consider revisions to the Fair Labor Standards

Act’s “white-collar exemptions”

47


Significant changes made in 2004

• Eliminated the 20% limitation on non-exempt duties for employees in an executive or

administrative capacity;

• Eliminated the requirement that executive employees regularly and customarily exercise discretionary

powers;

• Eliminated the requirement that administrative employees perform work related to management

“policies” (requiring simply that the work be related to “management”);

• Reduced the reliance upon the “production vs. staff dichotomy,” which required a determination

whether the work is “related to the administrative operations of the business as distinguished

from production”;

• Provided clear guidance with respect to numerous specific types of jobs, including insurance

adjusters, financial services, executive assistants, team leads, and human resources

professionals;

• Allowed professional employees to acquire their required knowledge through a combination of

intellectual instruction and work experience;

• Increased the required salary level;

• Clarified the salary basis requirements; and

• Reaffirmed the definition of “primary duty” as the most important duty, without strict reliance

upon any particular percentage of time spent on exempt tasks.

48


Expected Proposal For Regulatory

Revision

• Details are sparse

• President directed the Secretary to consider how the regulations could be

revised to:

• Update existing protections in keeping with the intention of the Fair Labor Standards Act;

• Address the changing nature of the American workplace; and

• Simplify the overtime rules to make them easier for both workers and businesses to

understand and apply.

• Salary level

• Guestimates are between $640/wk ($33,280) and $984/wk ($51,168) - currently

$455/wk ($23,600)

• Duties test (*undo some 2004 changes)

• Primary duty test - talk about clear line 50% rule (like California)

• May eliminate “working managers”

• Elimination of administrative examples, including insurance adjuster example

• Possible re-emphasis on admin/production dichotomy - add back that administrative

employees must perform work related to management “policies”, rather than work related

simply to “management”

49


Expected Proposal For Regulatory

Revision

• Assured New Line of Litigation - *with respect to

administrative exemption

50


Timeline

• No specific timeline

• Some former DOL officials have speculated that the

Department may rush to publish a Notice of Proposed

Rulemaking (NPRM) in the next few months

• Once the proposed rules are issued, interested

stakeholders will have the opportunity to comment and

suggest changes – ordinarily for a period of at least 30

to 90 days

• At that time, WellPoint should assess potential impacts,

consider submission of comments, and plan legal

strategies accordingly.

51

Contingent Workers

and Independent

Contractors

Understanding the Risks and Best Practices

Presented by: Kyle Petersen


What is a Contingent Worker?

53


What is a Contingent Worker?

• Freelancers

• Independent contractors

• Temporary workers

• Leased employees

• Consultants

54


Examples of Contingent Workers

• Directly hiring a worker on a short-term or project basis;

• Example: Contracting with a web designer to redo company website.

• Hiring “temporary” or “project/contract” workers from a staffing

agency for brief periods such as 30 days, or the length of a defined

project –

• Example: Increased customer service representatives during high

volume open enrollment periods.

• “Leasing” workers from a staffing agency –similar to temporary

workers, but usually one who is hired for an extended period.

• Example: temporary administrative assistant to replace a regular

employee out on medical leave.

• Employees of subcontractors who work in WellPoint offices

• Example: Help Desk function outsourced to IT provider

55 |


The Risk: Misclassification of Contingent

Workers as Non-Employees

1. Misclassification of worker as “independent

contractors” when they should be treated as

employees.

2. Joint Employer Liability for other contingent workers

(e.g., agency temps, leased employees).

56 |


Potential Liability for Misclassification

57



Overtime Liability

• If contractor would be non-exempt as employee

• Staffing agencies often fail to pay on salary basis

Minimum Wage/Reimbursement Issues

• Insufficient reimbursement for business expenses and

effect on minimum wage?

Employee Benefit Coverage

• Contractor claims 401(k), severance, health/wealthfar

coverage, Employee Stock Purchase Plans



Federal Taxes

• Back taxes if tax unpaid plus penalty for failure to

withhold

Social Security & FICA

• 6.2% of wages for failure to withhold

State and Federal Unemployment Tax

• Unpaid unemployment tax contributions, interest &

penalties

59



Workers’ Compensation

• Percentage of wages plus fines, no immunity

from tort

Federal Employment Laws

• Title VII, ADEA, ADA, FMLA

• Joint employer liability

60


Independent Contractor Test

61


Polling Question 1

To ensure proper classification of a worker as an

independent contractor, the manager must:

a. Use written independent contractor agreement

b. Pay the worker on a 1099;

c. Submit an evaluation form in the Fieldglass system for

evaluation and processing;

d. All of the above.

62


Answer

d. All of the above.

And more . . . .

63


Independent Contractor Test

Depends on law at issue and governmental

agency

• NLRA/ERISA: Common Law Agency Test

• DOL applying FLSA: Economic Realities Test

• IRS: Right to Control Test

• EEOC enforcing Title VII: Common Law Agency Test

• Title VII of the Civil Rights Act of 1964: Combined Test

• State DOL enforcing unemployment insurance acts: Largely

the Control Test (or variations)


Independent Contractor Test (cont’d)

• Most tests focus on the right to control (rather than

actual exercise of control) and entrepreneurial nature of

contractor’s business.

• Tests often applied in outcome determinative way –

factors weighted differently.

• Most tests focus on reality, rather than labels or what

the contract says.

• Courts do not have a set list of factors; may be willing to

consider additional arguments that re not even

commonly considered to be factors.


Independent Contractor-Employee

Continuum

66

Independent Contractor Inquiry Employer – Employee

Who Controls

Details of Work?

Entrepreneurial

Nature?

Are Services Core

to Business?

Who Provides Tools?

Contractor tasked with

results only – works out

details

Independent business; risk

of profit/loss; provides

services to others; may

subcontract

Services provided

incidental to core business

of client

Provides own tools,

instruments and place of

work

Employer dictates and

monitors details; requires

regular reporting

Exclusive to employer;

may not subcontract;

reimbursed for expenses;

paid hourly

Services are the

employer’s core business;

employees performing

same work

Employer provides tools

and instruments or

reimburses; provides

workplace


Independent Contractor-Employee

Continuum

67

Independent Contractor Inquiry Employer – Employee

Length of Service?

Skill and Judgment?

Nature of Payment?

Parties’ Intent?

Services performed in one

year or less; definite period

Services performed for

longer than one year or

indefinite

Highly skilled work requiring

independent judgment

Unskilled work requiring

little independent judgment

Paid by the job, by the

project, or by the piece Paid by the hour or

fixed salary per pay period

Provides own bid, negotiated

contract, and invoices for

services; waives benefits

Employer provides terms, or

terms unclear, and pays

regardless of invoices

Work customarily performed

by independent profession Work typically performed

by employees in industry

Industry Norm?


Recommendations to Managers

Selecting an Independent Contractor

Best Practice is to Choose an IC who:

• Operates through a corporation or other business form (other than

a so-called “single-member LLC”) and incurs expenses in

maintaining business.

• Has FEIN, own stationery, and business cards

• Complies with all applicable state licensing requirements.

• Has other clients and customers for whom he performs similar

services and/or advertises and attempts to obtain business from

other clients and customers.

• Has employees or subcontractors with whom he works.

• Has own business insurance or bonding agent.

• Is not a former employee of the Company, such as a retiree.


Joint Employer Test

69


Polling Question 2

Temporary workers supplied to WellPoint by a staffing

agency are employees of which company?

a. The Staffing Agency

b. WellPoint

c. Both

d. Neither

70


Polling Question Answer

Trick question:

• A, B, or C could all be right answers

71


What is “Joint Employment”?

• Generally, joint employment means 2 entities are

treated as the employer under various laws.

72 |


• Somewhat different analysis from independent

contractor test

• But certainly some overlap in factors considered

• Factors considered by DOL and by the courts have

varied

• It is a heavily fact driven analysis, which makes it

difficult to set down a specific test.

Joint Employment Test


Joint Employment Test

• Types of factors considered:

• Power to control/supervise the work performed

• Power (whether alone, or jointly), to directly or indirectly hire, fire, or modify

employment conditions of the worker

• Permanency and duration of the relationship (e.g., Microsoft)

• Level of skill required of the worker

• Whether the worker’s activities are integral or incidental to overall business

operations

• Location of work and equipment used

• Power to determine the workers’ pay rates or methods of payment

• Assumption of payroll responsibilities (e.g., making payroll records, issuing pay

checks, paying FICA taxes, providing workers’ comp insurance)

74 |


Joint Employer – Common EEO Issues

The Scenario: The Company brought in a team of temporary

workers from a staffing agency to answer phone calls and process

paperwork during open enrollment period due to high volume. The

temps were trained by the Company and work alongside Company

employees performing similar tasks and taking direction from

Company managers. The Company sets the shifts but temps submit

their timesheets to and are paid by the staffing agency and have an

off-site “supervisor” at the staffing agency.

The Issue: A temp tells a Company manager that the Company shift

supervisor constantly badgers her to go on a date and sends her

sexually explicit email messages.

75


Polling Question 3

Can the Company be liable for sexual harassment if the

temp sues?

a. Yes.

b. No.

c. Maybe.

76


Polling Question: Answer

c. Maybe

77


Explanation

• The Company could be sued for the sexual harassment

if it is determined to be a joint employer of the temp.

• In our Scenario, Several Factors Favor Joint

Employment Status:

• The Company trains the temps

• The Company sets the work hours of the temps

• The Company provides day-to-day direction and supervision to

the temps

78


Special Joint Employment Issues Under

the FMLA

Primary and Secondary Employers

• Staffing agency is the primary employer.

• Has authority/responsibility to hire and fire

• Assigns/places the employee

• Makes payroll

• Provides employment benefits

• Receiving company is secondary employer.

• Primary employer is responsible for providing FMLA

notices and job restoration.


Joint Employment Under the FMLA:

Primary and Secondary Employers

“Primary employers” must:

• Give required notices

• Provide leave

• Maintain health benefits

• Restore the employee to the same or similar job

“Secondary employers” must:

• Not interfere

• Accept a contractor employee returning from FMLA leave


Polling Question 4

Mary is assigned by Staffing Agency to work at the

Company. After 8 months, Mary is hired directly by the

Company. Then, six months later, she seeks FMLA for her

own serious health condition. Is Mary eligible for FMLA

leave?

a. No. She has not been employed by the Company for at least 12

months.

b. Only if she worked at least 1250 hours during the 6 months she

has been a Company employee.

c. Yes, so long as her combined hours as a temp and a Company

employee total 1250 over the past 12 months.

81


Answer

c. Yes, so long as her combined hours as a temp

and a Company employee total 1250 over the

past 12 months.

82


Joint Employment Under the FMLA:

Recommendations

Avoiding Liability

• Do not interfere with contractor employee FMLA

rights.

• Ensure that any employees hired later are credited

for time served as a “joint employee.”

• By contract, require contractors to comply fully with

the FMLA.

• Indemnification provision.


Joint Employment and the FLSA

Wage and Hour Compliance: Potential Landmines

• Exempt vs. Non-exempt misclassification

• Overtime pay

• Off-the-clock work

84 |


Joint Employment & The FLSA: Common

Problems

Scenario: WellPoint contracts with a staffing agency for temp

workers. WellPoint pays a flat hourly rate to Agency for temps based

on invoices sent by Agency detailing hours worked by each temp.

Agency pays temps on an hourly basis based on timesheets

prepared by the temp and signed off on by a WellPoint manager. The

temps work at WellPoint, using its equipment and on a schedule set

by WellPoint. At the beginning of the assignment, the temps go

through a WellPoint orientation and training session.

Issue: Temp sues both the staffing agency and WellPoint, claiming

that she was not paid for all her hours worked, including overtime

hours.

85


Polling Question 5

Can WellPoint be liable for the Agency’s failure to

pay the temp for all hours worked?

a. No. WellPoint is not the temp’s employer because the Agency

received her timesheets and paid her.

b. No. WellPoint may be a joint employer, but it had no way of

knowing that the Agency was not paying the temp for all hours

worked.

c. Yes. WellPoint is a joint employer and can be liable because it

should have known that the Agency was not paying for all hours

worked because it received the temp’s timesheets and detailed

invoices from the Agency.

86


(Most Likely) Answer

c. Yes. WellPoint is a joint employer and can be liable

because it should have known that the Agency was

not paying for all hours worked because it received

the temp’s timesheets and detailed invoices from the

Agency.

87


Contracting With

Vendor/Supplier of Labor

88


Contracting with Labor Suppliers

• Include strong indemnification language

• Include promises by vendor/supplier to your company

that staffing agency

• will comply with all employment laws (including all federal, state,

and local wage and hour laws);

• will be solely responsible for the payment of wages and benefits;

• will administer workers’ compensation and unemployment

compensation claims;

• will handle all employee discipline (and grievances, if applicable)

• Implement regular audits of pay, time, and employment

practices of vendor/supplier

89


Assessment of Relationships With

Vendors/Suppliers of Labor

• Understand that the contract does not control the

determination of whether your company is a joint

employer.

• Evaluate the necessity of the contract labor and

longevity of the relationship.

• If necessary to use contract labor:

• Train those supervising and/or involved in the vendor-provided

staff and agencies

• Ensure there are points of distinction between contract workers

and employees (other than status)

90


Ways to Distinguish Contract Workers

91


Possible Points of Distinction

• While the following distinctions do not guarantee that

the company can avoid being found to be a joint

employer, they may help create the distinction:

• Different jobs from employees

• Different hours

• Different amounts and forms of pay

• Not governed by employee handbook

• Not subject to discipline by company

• Not assigned work by company

• Not evaluated by company

• Not drug tested or background screened by company 92

Telecommuting 2014

Business Strategy, Reasonable

Accommodation, Multitude of Legal Issues

Presented by: Dana Howells


Telecommuting Statistics

“Studying the work-at-home population is a little

like trying to study meteoroids. We know there

are a lot of them and we know they’re important,

but we don’t know where they all are and not

everyone agrees on which ones to count.”

– Global Workplace Analytics & The Telework Research Network

http://www.globalworkplaceanalytics.com/resources/people-telecommute

94


From Global Workplace Analytics…

Survey Year Millions Definition

U.S. Census 2001 4 (approx.) Worked from home most

of previous week

American

Interactive

Consumer

Survey

2004 44.4 Employed Americans who

perform any type of work

from home from as little

as one day per year to full

time

World at Work 2006 12.4 Regular employee who

works from home at least

one day per month during

normal business hours

IDC 2005 9.1 Worked from home 3 or

more days per month

during regular business

hrs. (2.2 million work from

home full-time)

95


Latest Numbers by Percentage of Total

• Federal employees = 3.3%

• Private sector non-for profit employers = 2.9%

• Private sector for-profit employers = 2.6%

• State government workers = 2.4%

• Local government workers = 1.2%

3.1 million (excluding self-employed) consider home their

primary workplace

Source: Global Workplace Analytics & The Telework Research Network

http://www.globalworkplaceanalytics.com/telecommuting-statistics

96


Mixed Reviews

• In 2013, Best Buy and Yahoo limited work from home options

• Takes self-directedness on part of teleworker

• Takes more time to manage remote relationships and may be more

difficult

• Men tend to telework more than women

• Not quite six out of ten employers identify cost savings as a

significant benefit to telecommuting, primarily from real estate

reductions and “hoteling”

• Less driving = environmental gains, some cost saving, less

pressure on infrastructure and resources

97


Legal Issues For Telecommuting

• Wage and hour issues

• overtime and off-the clock

• meal periods and rest breaks

• record-keeping

• Safety issues

• Workers’ compensation/liability issues

• Posting requirements

• Reimbursement of business expenses

• Confidentiality and privacy

• Industrial homeworkers

• Across state lines—which law applies?

• Reasonable accommodations

98


Off the Clock

• Employers must maintain records of a nonexempt

employee’s work hours

• Employer must compensate the employee for the time

“suffered or permitted to work” (knew or should have known

standard)

• Nonexempt telecommuting employees should have set working

hours (including scheduled breaks and meal periods)

• Employees should be instructed to record any time spent

responding to e-mails, texts and phone calls (and any other

working time)

• Managers should be warned that contacting employees during

nonscheduled hours will result in overtime liability

• Pre-authorization of overtime can be required

99


Workplace Safety, Home Safety

• Employers’ general duty to provide a safe work environment is made more

difficult with telecommuters

• U.S. Department of Labor (DOL) issued guidance that OSHA will not

generally hold employers responsible for the safety of home offices (2000)

• Cal/OSHA not as clear as DOL

• Workers’ homes not considered a separate establishment and a separate

Cal/OSHA Form 300 is not required

• Employers should consider a safety checklist

• Compliance with workplace safety rules should be required

• Employees should immediately inform the employer of any injury suffered

in the course and scope of employment

• What about third party injuries at the home?

100


Workers Compensation

• Workers’ compensation law does not differentiate

between on-site and off-site: injury that occurs in the

course and scope of employment/arising out of

employment is covered (AOE/COE)

• Consider requiring all telecommuting employees (not only

nonexempt employees) to track their time spent working to help

determine injury occurred during working time

• Provide telecommuting employees with the contact information

for workers’ compensation medical providers and emphasize the

importance of reporting all work-related injuries immediately to

preserve tight to control treatment, and timely accept/deny and

raise defenses

• Provide/require ergonomically correct equipment

101


Reasonable Accommodations – at Home

• For disabled telecommuters, an employer may be

responsible for providing the same accommodations for

the employee’s home office as it would for the

employee’s workplace office (e.g., providing ergonomic

equipment, special chair, special telephone)

• Limits are “undue hardship”

• Not required to provide personal assistive devices ( e.g.

hearing aids, glasses, etc.)

• Use interactive process, offer alternatives to costly

accommodations

102


Posting Obligations

• Employers have workplace posting obligations

• wages, safety, workers’ comp info, leaves, discrimination, etc.

• No exemption for telecommuting

• No authority on how employers comply with respect to

telecommuting employees

• Options:

• provide employees who work remotely with a binder filled with

copies and update

• intranet/Internet access to the postings with explicit instructions

on how to access

• some posters are required to be posted in multiple places

103


Reimbursements

• Law vary by state

• Employers may provide necessary supplies directly (e.g., laptop,

printer, phone, post-its) or

• an allowance to reimburse the employee or

• a mechanism for telecommuting employees to submit business

expenses for reimbursement

• Employers need not reimburse telecommuting

employees for expenditures that are solely for personal

use.

• California Labor Code Section 2802

104


Third Party Privacy Rights

• Telecommuting implicates the security of customer, client or

employee personal information (e.g, SSN#, driver’s license

numbers, medical information, financial account information, HR

records)

• Employers need to enact industry-specific measures to maintain

data security

• In the event of a security breach (such as the theft of the

telecommuting employee’s laptop or the hacking of his or her

personal computer)

• timely notification of third parties may be required

• telecommuting employees need to notify company immediately

• telecommuting employees trained on data security best practices

105


Employee Privacy in Home Computers

• Employees generally have more expectations of privacy in

their home than they do in the workplace.

• Well- written policies state that employees do not have any

expectation of privacy when accessing organization

documents or using organization networks, even when the

access is from a home computer.

• home computer subject to discovery and subpoenas

• right to search home computer to recover company information?

• Policies should address what, if any, confidential information

may be accessed or transferred to a home computer and

how employees must protect that information when accessed

remotely.

106


Industrial Home Work Laws and

regulations

• Vestiges of earlier times still on the books

• States may have legal restrictions covering the types of

work that can be done remotely

• The California Labor Code restricts the types of

manufacturing activity that can take place at an

employee’s home

• For certain types of manufacturing that may be

performed at home, the employer must have an

industrial homework license, and the employee must

have a homeworker’s permit.

107


Crossing State Lines

• Telecommuting occurring within same state is simpler

• Employees working remotely from another state present

potential payroll, tax and choice of law issues

• As a general rule, if an employee works outside the

state in which the employer is located, the employee is

covered by the law of the state in which he or she

works.

• employees may be able to choose the most favorable law

• payroll generally must be set up in the “home” state in order to

withhold taxes, administer unemployment, etc.

• Consider provisions limiting the locations from where work can

be done remotely. 108


Discrimination

Telecommuting is term and condition of employment

• Employers cannot discriminate when deciding which employees

may or may not receive the benefit of telecommuting

• When formulating the criteria to for telecommuting, focusing on the position needs

and duties, as opposed to the reason that the employee is requesting to

telecommute (e.g., disability or caregiving)

• Providing telecommuting selectively, but not offering telecommuting

as an accommodation for a disability is problematic

• Employers should carefully evaluate the essential job duties of a

position before deciding eligibility to telecommute (whether as an

accommodation for a disability or not).

• Is regular presence (or presence at particular times) an essential

function of the job? What if the employer allows other employees in

similar job categories to telecommute?

109


Telecommuting as a Reasonable

Accommodation

• Examples of reasonable accommodations: job

restructuring, part-time or modified work schedules,

preferential reassignment to a vacant position for which

the individual is qualified, or an unpaid extension of paid

or unpaid leave.

• Similar to modified schedules and transfers, working

from home full time or part-time is a reasonable

accommodation to consider.

• Case studies and voting!

110


Case Study # 1

• Female employee, a steel buyer, ensured suppliers had steel to

manufacture parts.

• Job involved group problem-solving, requiring interaction with others.

• Severe IBS worsened over time. Difficult to drive.

• She requested permission to telecommute on an “as-needed basis” up to

four days a week, felt work could be done by computer or phone.

• Employer made a business judgment that group meetings were most

effectively handled face-to-face; email or teleconferencing was an

insufficient substitute for in-person team problem-solving.

• Other accommodations offered included moving closer to the bathroom, or

finding another job more suitable for telecommuting.

• Employee rejected other options.

• Employee subsequently placed on a performance improvement plan, then

fired.

111


Polling Question 6

Who wins the case?

1.) Employer wins

2.) Employee wins

112


And The Answer Is…

…Employees wins, at least in the early stages.

(1) Was physical presence an “essential” job function,

such that employee could not be “qualified” for the job

if she had excessive absenteeism?

(2) Was telecommuting a reasonable accommodation?

(3) Were proposed alternative accommodations

reasonable?

113


Take-Aways

“Attendance” and “physical presence” are not the

same • Cases have found “predictable” and “regular” attendance to be essential

requirements of most jobs, but

• The question is not whether ‘attendance’ was an essential job function for buyer,

but whether physical presence at was truly essential.

• Buyer would not be “absent” from work, but would simply be working from a home

location.

“Workplace” is not just a brick-and-mortar building • Attendance can no longer be assumed to mean attendance at the employer’s

physical location.

• Technology has advanced significantly. Remote conversations, difficult a few

years ago, are now routine (e.g., video conferencing and web-based live

meetings). Advancing technology has diminished the necessity of in-person

contact for effective, productive group discussion.

114


More Take-Aways

• Positions that require “teamwork” are not “inherently

unsuitable” to telecommuting.

• All relevant factors must be considered, and an employer’s

business judgment is just one factor.

• Telecommuting does not mean “flex time.” Telecommuters do

their same jobs during regular work hours, but from home.

• “Flex time,” where employees schedule their own hours, may

be a more difficult accommodation than telecommuting.

• Relying on past attendance issues in denying telecommuting

requests is problematic.

115


Case Study # 2

• Female employee, medical transcriptionist, has OCD and it takes her a

long time to get ready in the morning, because if any of her rituals are

interrupted, she has to start over.

• She has received several performance counseling documents and a

“below expectations” performance rating for attendance and tardiness.

Under the company telecommuting policy, only employees rated “above

expectations” or better are eligible to telecommute and no one with a

performance counseling with in the last 12 months is allowed.

• Other people in her job category who are better performers are allowed to

telecommute.

• She asks to be allowed to work from home as a reasonable

accommodation.

• Her request is declined based on her performance.

116


Polling Question 7

Who wins the case?

1.) Employer wins

2.) Employee wins

117


And The Answer Is…

…Employee wins, at least in the early stages.

(1) Was physical presence an “essential” job function,

such that employee could not be “qualified” for the job

if she had excessive absenteeism?

(2) Was telecommuting a reasonable accommodation?

(3) Were proposed alternative accommodations

reasonable?

118


Take-Aways

• Similar to last case study, where performance–based

problem is due to disability, employers may have to

make exceptions to the policy.

• If work from home is granted to others in the job

category, it may be difficult to argue undue hardship,

even though self-directed good performers are better

candidates for telecommuting.

• There was no good reason why the work could not be

performed remotely

119


Best Practices

• Carefully analyze what positions are suited for working

remotely and why, using essential function analysis

• Use a standardized process for approving/disapproving

telecommuting requests

• Create a written, comprehensive telecommuting policy

• Signed telecommuting agreement

• Set clear time limits on telecommuting pilots (or

accommodations), and review, reassess at the end of

the approved time period

• Consider risk management issues, insurance,

compliance variables 120


More Best Practices

• Establish availability during core business hours or

other hours, a regular schedule

• Keep track of time worked

• exempts need to track PTO, sick, vacation, observe core hours

• nonexempts need to follow same timekeeping as in office

• Set expectations as to caregiving responsibilities,

distractions

• If some travel into office will be required, set parameters

• Consider impact of telecommuting on other areas of the

business

121


More Best Practices

• Consider equipment, technology, who pays, return of

property

• Set expectations of privacy (or lack thereof)

• Home visits/inspections?

• Establish rules for handling sensitive business

information, medical records

• Include intellectual property safeguards

• Consider payroll complications, taxes, choice of law

issues

• Manage safety/workers compensation issues

122

ADA Hot Topics and

FMLA/Disability Leave &

Workers’ Compensation

Presented by: Colleen Regan


THE ADA, FMLA & Workers’ Comp

Overlap

124

FMLA ADA

Worker’s

Comp


Legal Framework

125

FMLA ADA WC

Unpaid time off with

job and benefit

protection for specified

family and medical

leave reasons

12 weeks of leave in a

12 month period / 26

weeks in a 12 month

period to care for

injured service

member

Prohibits

discrimination against

a qualified individual

with a disability who,

with or without

reasonable

accommodation, can

perform essential

functions of the job

Reasonable and

necessary medical

treatment and

temporary total or

permanent disability

benefits for an

employee sustaining a

work related injury or

illness


Critical Definitions

126

FMLA ADA WC

Serious health condition

Disability (greatly broadened by

ADAAA)

Arising out of and in course of employment


Trend: Increasing ADA Cases

127


Avoiding Trouble On Leave Requests

Under The ADA

“The key to avoiding trouble under the Americans with

Disabilities Act, is to be constantly asking the question

‘Can we get this employee back on the job with a

reasonable accommodation?’ and certainly not to be

asking only ‘Has this employee been on leave long

enough for us to get rid of him?’”

- John Hendrickson, EEOC Regional

Attorney heading up Sears case

128


What Is A Reasonable Accommodation?

• All persons must be able to perform essential

functions of the job with or without reasonable

accommodation

• Essential Functions - Does the individual meet the basic

qualifications of the job?

• Must provide reasonable accommodation absent undue

hardship:

• Modifications or adjustments to the work environment, or to the manner or

circumstances under which the position held or desired is customarily performed, that

enable a qualified individual with a disability to perform the essential functions of that

position

129


What Is A Reasonable Accommodation?

Making existing facilities

more accessible

Reassignment of non-

essential job functions

Part-time or modified

work schedules,

including unpaid leave

Reassignment to a

vacant position

Providing or modifying

equipment or devices

Modifications of

examinations, training

materials or policies

Providing qualified

readers or interpreters

Telecommuting Providing transportation

or reserved parking

spaces

130


What Is Not A Reasonable

Accommodation?

• Violating a bona fide seniority system

Example: An employee has sleep apnea and needs to work first shift but to transfer

him from first to second would violate the CBA’s seniority provision

• Eliminating essential job functions

Example: An employee can’t drive a forklift due to epileptic seizures and wants this

essential job function eliminated

• Lowering production standards

Example: An employee with carpal tunnel is given various reasonable

accommodations but isn’t meeting performance metrics

131


The Interactive Process

• Must engage in an interactive process!

• Case by case analysis

• When do you need to engage in the interactive

process?

• An applicant or employee requests an accommodation (no magic words

required); or

• An employer:

(i) knows that the employee has a disability, and

(ii) knows, or has reason to know, that the employee is having difficulty performing

job functions because of an impairment

• The safest approach is to consider any notification that a job modification is needed because

of a medical condition as a request for reasonable accommodation

132


The Interactive Process – Steps

• Identify essential job functions (use job description and

consider a functional analysis)

• Dialogue with employee to identify specific limitations,

workplace barriers, and possible accommodations

• Explore those accommodations proposed by the

employee and explore other accommodations

• Obtain information, such as necessary medical

information

133


The Interactive Process –

Obligations of Applicant/Employee

• Cooperate in good faith

• Provide a concise list of work restrictions (In California, not

required to identify the nature of the disability)

• Provide necessary medical and other information

• Provide supplemental medical information when informed original

medical information is insufficient

• If considering an alternative position, provide information regarding

educational qualifications and work experience

134


How Do You Determine Whether There Is

An “Undue Hardship?”

• Generalized conclusions will not suffice

• Individualized assessment showing specific

accommodation would cause significant operational

difficulty or expense

• Based on several factors:

• Nature and cost of the accommodation needed

• Overall financial resources; size, number of employees, and type and

location of facilities of the employer, the effect on expenses and

resources of facility

• Type of operation of the employer

• Impact of the accommodation on operations

• Generally, cost alone will not be sufficient

135


Examples of Operational Impact

• Significant losses in productivity because work is

completed by less effective, temporary workers or last-

minute substitutes, or overtired, overburdened

employees working overtime who may be slower and

more susceptible to error

• Lower quality and less accountability for quality

• Lost sales

136


More Examples of Operational Impact

• Less responsive customer service and increased

customer dissatisfaction

• Deferred projects

• Increased burden on management staff required to find

replacement workers, or readjust work flow or readjust

priorities in light of absent employees

• Increased stress on overburdened co-workers

137


Employee Cooperation

138

FMLA ADA WC

Duty to cooperate in

providing medical

certification and other

requested medical

information (i.e.,

recertification).

Failure to cooperate

can lead to

delay/denial of leave.

Duty to engage in

interactive process

with employer.


can lead to denial of

reasonable

accommodation.

Duty to cooperate.


can lead to denial of

benefits.


Intermittent Leave Or Reduced Leave

Schedule

139

FMLA ADA WC

Absolute right for

employee’s serious

health condition or to

care for a family

member with a serious

health condition, if

medically necessary.

Reasonable

accommodation

unless employer can

establish undue

hardship.

Not guaranteed.


Attendance

140

FMLA ADA WC

Absence due to a

FMLA qualifying

reason cannot count

as occurrence under

any attendance policy.

Frequent unplanned

absences may make

an employee

“not qualified” BUT

accommodate unless

undue hardship.

Disciplining/

terminating an

employee for

absences due to a

workers’

compensation injury

can be risky.


Polling Question 8

• Ben has had absence and tardiness problems for years.

He has been on the last step on your attendance

program several times.

• Before you get to termination, he brings in FMLA leave

papers and requests intermittent leave. What do you

do?

141


Attendance Case Studies – Ben

• Option 1: Assuming he is qualified, grant the

intermittent leave.

• Option 2: Grant the intermittent leave, but transfer

him to another position.

• Option 3: Deny the request because it is obvious

that he is just trying to avoid discipline.

• Option 4: Seek a second opinion as to the

validity of the medical certification.

142


Polling Question 9

Jewel suffers from an anxiety and sleep disorder. She is an

administrative assistant for several employees that do not work on

the local job site, so all communication is by email and phone.

Several of these employees are on other time zones. After a car

accident on the way to work, Jewel suffers disabling anxiety about

commuting during rush hour. She takes twelve weeks leave for

inpatient treatment. Her psychiatrist releases her to full duty, but

recommends several accommodations, such as the ability to

telecommute on certain days and a later start time for days she is

required to be in the office.

What do you do?

143


Attendance Case Studies – Jewel

• Option 1: Do not accommodate; it will clearly

present undue hardship to the Company.

• Option 2: Tell her supervisor about the medical

condition and ask if it will be too

much trouble to accommodate.

• Option 3: Engage in the interactive process to

determine how long the restrictions will

be in place and whether the Company

can reasonably accommodate without

undue hardship.

144


Job Protection

145

FMLA ADA WC

Return to same or

equivalent position for

12 weeks

Exception: what would

have happened to

employee had he/she

not gone on leave?

Same position unless

undue hardship to

keep position open –

need not keep it open

indefinitely

Not guaranteed, but ...


Polling Question 10

Sarah was a fairly new employee when she went on ADA

leave. A brand new employee steps in to fill in and does

a fabulous job. The department decides that Sarah has

to go.

What do you do?

146


Reinstatement Case Studies – Samantha

• Option 1: Terminate Sarah immediately and retain

the new employee.

• Option 2: Let the new employee fill in; when Sarah is

released to return to work, give her back

her old job.

• Option 3: Let the new employee stay in the job and

when Sarah is ready to come back, offer

Sarah a comparable position.

147


Polling Question 11

• Martha works in Indianapolis in a position that manages a group of

20 people. She has been out on an ADA disability leave for several

months, but has been certified to return to work. While she was out,

the department filled her position due to documented undue

hardship.

• When Martha is released to return to work, she finds that her old

position is filled by another and she must look for alternative

positions in another area of the Company.

What do you do?

148


Transfer to Another Job Case Studies –

Martha

• Option 1: Inform Martha of all comparable positions

that are available for which she may be

qualified; don’t require her to compete with other

candidates.

• Option 2: If there are no comparable positions open,

assist Martha in obtaining any lower position (not

necessarily comparable) for which she is qualified;

don’t require her to compete.

• Option 3: If no suitable positions are available at the time she

returns, keep looking on her behalf for at

least 30 days.

• Option 4: If no other positions are available, give her a

promotion!

149


Fitness For Duty Certifications

150

FMLA ADA WC

Employee may be

required to present a

certification from

his/her healthcare

provider that he/she is

able to resume work.

Permitted to determine

if employee can

perform essential

functions with or

without

accommodation.

Permitted.


Fitness For Duty Exam Situation

Before requesting FMLA leave for medical treatment

arising from depression, Steve, a security employee who

carries a weapon as part of his duties had engaged in

erratic behavior. After completing a treatment program,

Steve’s doctor certifies that he is ready to return to full

work duties. Can the employer require a fitness for duty

exam after Steve is returned to work?

151


Transfer to an Alternative Position

152

FMLA ADA WC

If leave is foreseeable

based on planned

medical treatment or

intermittent, can

require transfer. Can’t

require light duty

Must be similar job

and maintain wages

and benefits

Accommodation of last

resort if unable to

accommodate in current

job

Can change

wages/benefits to those

of new position

Refusal of light duty

position can affect

receipt of benefits


How to Handle Light Duty or Other Work

Restrictions

• Following a work-related injury, there is often a period where the

injured worker has a medical limitation/work restrictions

• Once the employee returns to work, supervisors must ensure that

the work performed complies with medical limitations

• If there are performance problems, avoid references to the WC

claim or disability

• If the employee claims he/she cannot do something, seek

clarification from doctor

• If no work injury but the employee may be disabled, determine

whether he/she can perform the essential functions with or without

an accommodation

153


Light Duty Case Studies

• Ben has a job that requires lifting, bending and

stooping. He injures himself at work and presents a

restricted return to work release indicating he can’t lift

any weight for 6 weeks. He tells you he wants to take

FMLA leave but you want to put him in a light duty

assignment.

• The Company offers Susan, who was injured at work, a

light duty assignment. Debbie is in a personal car

accident and presents a restricted return to work

release. She tells you she wants a light duty

assignment similar to Susan’s assignment.

154


Maximum Leave Policies

• Maximum leave policies not sufficient to satisfy

employer’s duty of reasonable accommodation

• Policies must incorporate case-by-case assessment

and employer’s duty for reasonable accommodation

• Challenges to automatic termination policies:

• Challenges to automatic termination policies:

155

$6.2 million settlement

$3.2 million settlement

$20 million settlement


FMLA Current Issue

Samantha has asserted that she has a condition that

qualifies as a “serious medical condition” for which she

will need surgery, but does not want to designate her

leave as FMLA leave. She is pregnant and does not want

to exhaust her FMLA leave so that she can take her full

12 weeks of FMLA leave when she has her baby. To

prevent her employer from forcing her to exhaust her

FMLA leave, she simply refuses to turn in her FMLA

certification from her medical provider. Can the employer

force designate this leave as FMLA protected anyway?

156


Hot Button Issue – Performance

• What should an employer do if an employee requests

leave or an accommodation for the first time in

response to counseling?

• May address the performance issues BUT:

• If an accommodation is requested, begin the “interactive process”

• Poor performance does not impact an employee’s right to take FMLA

leave

• NOTE: Don’t counsel an employee for performance issues that

are caused by the FMLA/ADA absences (e.g., employee isn’t

getting his/her work done because he took intermittent leave)

157


Hypothetical

Abby does not disclose her learning disability, even when

she begins having performance problems that she

believes are disability-related. Her supervisor notices the

performance problems and counsels Abby about them. At

this point, Abby discloses her disability and asks for a

reasonable accommodation. The supervisor denies the

request immediately, explaining, “You should not have

waited until problems developed to tell me about your

disability.”

• Is the supervisor’s response okay?

158


Hot Button Issue – Performance

• May an employer use the same evaluation criteria for

employees with disabilities as for employees without

disabilities?

• Yes. An employer should evaluate the job performance of an employee

with a disability the same way it evaluates any other employee’s

performance.

• Last year Nicole received an “above average” review at her annual

performance evaluation. During the current year Nicole had to deal with a

number of medical issues concerning her disability. As a result, she was

unable to devote the same level of time and effort to her job as she did during

the prior year. She did not request a reasonable accommodation (i.e., inform

the employer that she requires an adjustment or change as a result of a

medical condition). The quantity and quality of Nicole’s work were not as high

and she received an “average” rating. How should Nicole be rated?

159


Retaliation – Best Practices

• Make sure that the employee continues to be treated like any other

employee

• Carefully review the decision before disciplining or changing job

duties

• Any information regarding a complaint or an employee’s exercise of

rights under these statutes should only be shared on a “need to

know” basis – and co-workers almost never need to know

• Remember that absences covered by the ADA or FMLA cannot

be counted against an employee under attendance policies, in

performance reviews, or in rankings or layoffs

160

Thank you

161

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