Archive for April, 2011

Montana, Kansas Enact Workers’ Compensation Reform

Forget immigration reform. Maybe the next big wave to sweep the country will be reforming state workers’s compensation laws. These laws compensate workers who can’t work because of an injury, often requiring they not sue their employers. They’re intended to give workers a way to continue their income while sparing employers from being hauled into court.

But some have called for reform of these laws, and legislatures in at least two states, Montana and Kansas, have heard the call.

Highlights of the Montana law, H.B. 334:

• Terminates medical benefits for permanent partial disability claims 60 months from the date of injury, but also allows an extension of the benefits upon review by a panel of doctors.

• Requires doctors to apply the sixth edition of the American Medical Assn.’s “Guides to the Evaluation of Permanent Impairment” when rating impairments.

• Limits employer liability for injuries that occur off the company’s premises, such as while a worker is performing personal business, on a break, or participating in social or recreational activities paid for by the employer.

• Freezes medical fee schedules from July 2011 through June 2013 at rates that were in effect on Dec. 31, 2010.

• Allows insurers to designate doctors.

Kansas’s new law, HB 2134:

• Ends payment of unwarranted claims by raising the threshold required for an incident to be compensable;

• Overturns court decisions that eroded the workers compensation system;

• Clarifies that employers are entitled to a credit for pre-existing conditions; and

• Increases benefit caps for injured workers who have lost the capacity to work.

Take-Home Cars Get County Government’s Attention

Taxpayers who think that public employees have it too cushy might have an ally in the Montgomery County, Maryland government. On Tuesday members of the County Council signaled limits are coming on the use of take-home cars.

Lax control of the fleet has led to cars being used for personal benefit rather than official business, the Washington Post reported Wednesday.

Take-home cars can save taxpayers money in some instances, for example, by letting empoyees such as inspectors get to their assignments more quickly at the beginning of the work day.

And it seems most county employees are conscientious about accounting for cost of their commute.

Still, this area begs for better oversight, and HR managers across the U.S. might want to use this as a cautionary tale.

Georgia Legislature Passes Bill Mandating E-Verify Use

Georgia is poised to become the next state to require its  businesses to use the federal government’s database for verifying the eligibility of new hires to work legally in the United States.

Georgia businesses with 10 or more employees will soon have to enroll in the E-Verify program.

The Georgia legislature passed the bill April 14 and sent it on April 20 to the governor for his expected signature.

Enrollment in E-Verify is free, and so-called Employer Agents promise to handle the paperwork for employers for a small fee.

Read more about the bill here, and read the text of the bill here.

Single Payer Bill Progresses Through Vermont Legislature

Vermont is close to enacting a single-payer health care system. The state Senate approved a single-payer bill yesterday. The state House passed a version earlier. Here’s a recap from

Watch for “Excessive Fees” in 401(k) Plans

Plan fiduciaries could be legally vulnerable if they don’t take care to make sure that the 401(k) plans they are administering don’t charge excessive fees, or at least closely monitoring what’s happening.

Our friends at McDermott Will & Emery recently analyzed a Seventh Circuit decision on “excessive fees” charged by the Kraft Global Foods 401(k) plan, in which the appeals court reversed a district court’s grant of summary judgment to the plan fiduciaries.

Read more about it here.

Managing FMLA Intermittent Leave — Help Is Out There

Need some help on managing intermittent leave under the Family and Medical Leave Act? Then look at these tips from the Foley & Lardner website.

Boeing Violated Labor Law by Moving Work to Nonunion Plant, NLRB Complaint Says

Is it a violation of the National Labor Relations Act for an employer to transfer work from its unionized plan to a nonunionized facility because of past strikes and the possibility of future strikes?

The National Labor Relations Board thinks so. It recently filed an unfair labor practice against Boeing Corp. alleging the company violated federal labor law by deciding to transfer a second production line to a non-union facility  in South Carolina for discriminatory reasons.

According to the Workplace Prof Blog, “In repeated statements to employees and the media, company executives  cited the unionized employees’ past strike activity and the possibility  of strikes occurring sometime in the future as the overriding factors  in deciding to locate the second line in the non-union facility.

The NLRB launched an investigation of the transfer of second line  work in response to charges filed by the Machinists union and found  reasonable cause to believe that Boeing had violated two sections of the  National Labor Relations Act because its statements were coercive to  employees and its actions were motivated by a desire to retaliate for  past strikes and chill future strike activity.”

Federal Court Okays Wellness Program That Imposed Surcharge on Nonparticipants

How an employer structures its wellness program can make the difference between complying or not complying with federal benefit laws.

Under Equal Employment Opportunity Commission guidelines, participation in such programs is supposed to be voluntary.

But is it really “voluntary” if the employer imposes a surcharge on employees who don’t participate?

Interestingly, a recent ruling by the U.S. District Court in Florida avoided answering that qyestion, but ruled instead that a so-called “participation only” wellness program was lawful under the safe harbor for bona fide benefit plans under the Americans With Disabilities Act.

You can read the decision here, and click here for an ERISA benefit lawyer’s take on the decision.

EEOC Hit With $751,942 Sanctions Award in Baseless Suit Against Staffing Service

The Equal Employment Opportunity Commission was ordered recently to pay the attorney’s fees of a staffing service that it wrongfully accused of having a “blanket” policy of not hiring applicants with criminal records. The EEOC alleged that such a policy had a disparate impact on African-Americans, but the court said in EEOC v. Peoplemark, Inc. (W.D. Mich. Mar 31, 2011) that not only did the EEOC know there was no evidentiary basis for the charge but that it continued the cased even after it knew that.

It’s a significant case because the EEOC has targeted such no-hire policies, arguing that they impede employment of minorities because some minorities have high conviction rates compared to whites.

You can read more about the case here.

Wal Mart to Pay $440,000 To Settle Allegations It Tolerated Harassment of Mexican-American Employees

Ten employees who say they endured ethnic slurs and derogatory remarks on a daily basis while working at a Sam’s Club store in Fresno, Calif. will share in a $440,000 settlement of their harassment complaint, the Equal Employment Opportunity Commission announced April 14.

Nine of the lawsuit plaintiffs were of Mexican descent and one was married to a Mexican. The alleged harasser was a Mexican-American co-worker.

The plaintiffs say they first complained in April 2006 but managers failed to address the harassment. The EEOC filed a complaint in October of that year, and the harasser was fired two months later.

The agreement also calls for Wal-Mart to review its policies and provide training on discrimination at Sam’s Club locations in Fresno and Bakersfield.

Here’s the EEOC’s press release announcing the settlement.