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AOA Tips, Views, News & More

Employment Practice Liability - Risk Management Tip
By Britton D. Weimer. Esq. of Jones Satre & Weimer PLLC

The top 8 rules of EPL discrimination claims prevention.

Rule number three: "Give each employee a written annual performance review. Include in the review all significant problem areas."

Rationale: Many employers do not provide objective performance reviews, fearing it will diminish employee morale. In many cases, a busy supervisor simply does not want to deal with the conflict that may arise with a candid employee appraisal.

From a risk management standpoint, though, avoiding employee reviews is very problematic. Performance problems raised for the first time in a discrimination suit (after the employee's termination) will seldom be credible.

Verbal performance reviews are better than no reviews at all. However, verbal reviews usually lead to credibility disputes in an employment suit. In the heat of litigation, the two sides will seldom agree on what was said in a verbal review.

Written performance reviews eliminate the dispute over what was said. And, if the written reviews are given annually, they document the problems contemporaneously, adding to their credibility. 

Finally, by providing all employees with annual performance reviews, the employer is insulated from a subsequent claim that it was only writing up the plaintiff -- i.e. the member of the protected class.

Source: Employment Practices Liability, Chapter 6 (2nd Ed. National Underwriter 2012).

Contact Brit 952/820-8403 or bweimer@jonessatre.com

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HR Consulting & More 

By Aaron Peterson of CenterPointe Solutions Inc.

The IRS has released new guidance describing methods that employers may use to determine which employees are treated as full-time employees for purposes of the shared employer responsibility requirements under Health Care Reform. The IRS Notice 2012-58 is titled "Determining Full-Time Employees for Purposes of Shared Responsibility for Employers Regarding Health Coverage" and can be read in detail.

Two items that people should remember from the notice are that Employer Shared Responsibility is:

Beginning in 2014, employers with 50 or more full-time employees may be required to make a "shared responsibility payment" if any of the employer's full-time employees is certified to receive a premium tax credit or cost-sharing reduction payment. This may happen if the employer does not offer full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan, or if the coverage offered does not provide minimum value or is unaffordable to the employee. For purposes of this requirement, a full-time employee with respect to any month is an employee who is employed on average at least 30 hours of service per week.

And determining Full-Time Employee Status should include:

The new guidance describes options for employers for determining full-time employee status in the case of ongoing employees and newly-hired variable hour and seasonal employees, including the transition from newly-hired to ongoing employees and a series of examples. It also permits employers to rely on guidance described in previous notices, including safe harbor which provides that an employer may use an employee's Form W-2 wages to determine the affordability of employer coverage.

For additional information, contact Aaron at aaron@mycpsinc.com or 800-340-5856

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Results of Last Poll Questions

For a variety of reasons, it appears that many insurance agencies are following up with their customers to "remind" them of a pending non-pay notice.  What is the position of your agency?

9%     (a) We follow up only on specific accounts based on certain factors (size, length of                 client relationship with agency, etc.)                        

86%    (b) We follow up on all accounts                                                                           

5%     (c) We follow up on either commercial lines accounts or personal lines accounts but                not both