Preventing Workplace Retaliation Claims

Workplace Retaliation is a form of unlawful discrimination that occurs when an employer, employment agency or labor organization takes an adverse action against an employee or other covered individual because he or she engaged in a protected activity, including filing a charge of discrimination with a fair employment practices agency or participating in an investigation of alleged workplace misconduct. In recent years, retaliation claims have significantly increased becoming one of the most frequent and potentially costliest workplace disputes. Even if unsuccessful, these claims are very expensive and time consuming for employers. By being proactive in this area, employers are able to reduce the risk of retaliation claims.

The laws enforced by the Equal Employment Opportunity Commission (EEOC) prohibit retaliation in all aspects of employment. These include hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits and other term or condition of employment. Other types of employment laws also prohibit retaliation, including wage and hour laws, family and medical leave laws, labor laws, and workplace safety laws. Also, many state laws, such as workers' compensation and state labor laws also contain specific prohibitions against retaliation.

Human resource professionals are the front lines against charges and complaints of retaliation. Preparing for these claims before they occur enables human resources to play a significant role in preventing and reducing retaliation claims. Successful retaliation claims usually result after an employer takes an 'adverse employment action' against an individual who has exercised his or her rights under an anti-discrimination or other workplace law. This situation often occurs inadvertently as management is unaware of the special status such individuals assume. However, ignorance of the law is rarely an excuse.

What can be done to reduce the likelihood of a retaliation charge or lawsuit?

1.       Adopt a strong anti-retaliation policy.

This statement should clearly express that your company will not tolerate retaliatory conduct based on an employee's opposition to job discrimination or harassment.

2.       Inform employees about the process for reporting alleged retaliation.

The policy should state to whom employees report retaliation. (i.e. the chain of command)

3.       Training

Managers should be trained on acceptable and unacceptable responses to protected activity under the anti-discrimination laws, and remind them that they will be subject to disciplinary action if they retaliate against individuals who complain of discrimination.

4.       Monitor

Carefully monitor any proposed action against a discrimination complainant or witness to ensure that it is based on legitimate business needs and not a retaliatory reason.

5.       Investigate

Take all allegations seriously, and promptly investigate. Retaliation should be stopped even if it does not rise to the level to violate laws. This will reduce the likelihood of the problem escalating to the level that a claim or lawsuit is brought alleging retaliation.

B.Kyle Sanders

Benefits, Inc.  

2016 HSA Contribution Limits and Minimum Deductibles

The IRS has released the 2016 inflation adjusted amounts for health savings accounts (HSAs). To be eligible to make HSA contributions, an individual must be covered under a high deductible health plan (HDHP) and meet certain other eligibility requirements. 

High Deductible Health Plan Coverage
An HDHP has a higher annual deductible than typical health plans and a maximum limit on the sum of the annual deductible and other out-of-pocket expenses. For 2016, the minimum annual deductible is $1,300 for self-only coverage or $2,600 for family coverage. Annual out-of-pocket expenses (deductibles, co-payments, and other amounts, but not premiums) may not exceed $6,550 for self-only coverage or $13,100 for family coverage. 

Annual HSA Contribution Limitation
An eligible employee, his or her employer, or both may contribute to the employee's HSA. For calendar year 2016, the annual limitation on HSA deductions for an individual with self-only HDHP coverage is $3,350. For an individual with family coverage under an HDHP, the annual limitation on HSA deductions is $6,750. The limit is increased by $1,000 for eligible individuals age 55 or older at the end of the tax year.

OSHA Updates 'It's The Law' Poster for Employers to Display in the Workplace

The U.S. Occupational Safety and Health Administration (OSHA) has released a new version of its "Job Safety and Health - It's The Law!" poster. Employers must display the poster in a conspicuous place where workers can see it; however, previous versions of the poster do not need to be replaced. (Employers in states operating OSHA-approved state plans should obtain and post the state's equivalent poster.)

The newly designed poster informs employers of their legal obligation to provide a safe workplace. It also informs workers of their right to request an OSHA inspection of their workplaces, receive information and training on job hazards, report a work-related injury or illness, and raise safety and health concerns with their employers or OSHA without being retaliated against.

Additionally, the poster has been updated to include the new reporting obligations for employers, who must now report every fatality and every hospitalization, amputation, and loss of an eye. It also informs employers of their responsibilities to train all workers in a language and vocabulary they can understand, comply with OSHA standards, and post citations at or near the place of an alleged violation.

New IRS Q&As on ACA Information Reporting by Large Employers

A new set of Q&As from the IRS provides additional information for large employers that are required to file Forms 1094-C and 1095-C, as part of the information reporting requirements under the Affordable Care Act (ACA). Information reporting is first required in early 2016 with respect to calendar year 2015.

Background
The ACA requires large employers (generally those with 50 or more full-time employees, including full-time equivalent employees) to report information to the IRS and to their employees about their compliance with the  employer shared responsibility provisions ("pay or play") and the health care coverage they have offered.

New Q&As
In addition to basic information regarding employer reporting, the new IRS Q&As also include specific information on reporting offers of coverage and other enrollment information. Specifically, the Q&As address how large employers should:

• Report whether an offer of coverage was made to an employee for a calendar month, including months in which employees are hired or terminated;
• Enter applicable safe harbor codes (if applicable);
• Report enrollment information for self-insured coverage provided to non-employees; and
• Complete Forms 1094-C and 1095-C if they are eligible to use the qualifying offer method, qualifying offer method transition relief, or the 98% offer method.

The Q&As also address how to report offers of COBRA continuation coverage. For general details about the large employer reporting requirements, employers may refer to the previously released IRS Q&As.

Updated FMLA Model Forms Now Available for Use by Employers

The U.S. Department of Labor recently released  updated model forms for employers to use in connection with leave taken by their employees under the federal Family and Medical Leave Act (FMLA). The updated forms reflect a new expiration date of May 31, 2018. (Previously released versions contained month-to-month expiration dates.)

Under the FMLA, eligible employees are entitled to take unpaid, job-protected leave for specified family and medical reasons. The law also includes certain family military leave entitlements. Private employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year must comply with the FMLA. Employees must work at a location where the company employs 50 or more employees within 75 miles and meet certain other requirements with respect to time worked before they are entitled to take FMLA leave.

The following forms have been updated with the new expiration date:

• WH-380-E Certification of Health Care Provider for Employee's Serious Health Condition  
• WH-380-F Certification of Health Care Provider for Family Member's Serious Health Condition  
• WH-381 Notice of Eligibility and Rights & Responsibilities
• WH-382 Designation Notice
• WH-384 Certification of Qualifying Exigency For Military Family Leave
• WH-385 Certification for Serious Injury or Illness of Current Servicemember - for Military Family Leave
• WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

LGBT Workers and Employment Discrimination: What Employers Should Know

New guidance released by the U.S. Equal Employment Opportunity Commission (EEOC) highlights what employers should know about the agency's enforcement efforts on behalf of lesbian, gay, bisexual, and transgender (LGBT) individuals under federal employment discrimination laws.

Background
Title VII of the Civil Rights Act (Title VII) prohibits discrimination in employment on the basis of race, color, sex, religion, and national origin. This federal law applies generally to employers with 15 or more employees.

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. The law also makes it illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

EEOC Guidance
The EEOC takes the position that discrimination against an individual because that person is transgender is a violation of Title VII's prohibition of sex discrimination in employment. Therefore, the EEOC's district, field, area, and local offices are expected to accept and investigate charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition).

In addition, the EEOC takes the position that lesbian, gay, and bisexual individuals may bring valid Title VII sex discrimination claims, as Title VII also protects such individuals against sex discrimination. The EEOC is expected to accept and investigate charges alleging sexual-orientation discrimination, such as claims of sexual harassment or allegations that an adverse action was taken because of a person's failure to conform to sex-stereotypes.

The text of the guidance is available by clicking here. A brochure regarding the prevention of employment discrimination against LGBT workers is also available.