NLBMDA Makes Case for Eco-Label Before American Lumber Standards Committee
On November 13, NLBMDA presented its proposal for an eco-label to the board of the American Lumber Standards Committee (ALSC) in Charleston, SC. Representing NLBMDA were Val Hanson, former LBMI Trustee, Ken Marson, NLBMDA Board Member and NLBMDA's alternate representative to ALSC and NLBMDA Counsel Frank Moore. Read more.
Health Care Bill Faces Uncertain Future in Senate
Last week, House Democratic leaders celebrated their slim victory on health care overhaul legislation (H.R. 3962), which passed by a vote of 220-215. NLBMDA, which opposed H.R. 3962 for its numerous costly tax increases and mandates on employers, has joined the Start Over Coalition of business groups urging Congress to go back to the drawing board to draft health care reform legislation which will focus on reducing the cost of health care. Read more.
Estate Tax Reform Vote Pending
While Congressional tax committee leaders have continued to indicate that votes on the estate tax would be held before the end of the year, it is not yet clear in what form those votes will take. The NLBMDA Legislative Advocacy Committee at their October meeting reiterated their preference for full repeal of the tax, and support for potential compromises only if they maintain a high enough exemption level to protect the asset-heavy nature of a family-owned building supply company. Read more.
Congress Considers Mandated Paid Sick Leave for Swine Flu
Legislation has been introduced in Congress to require employers to provide up to five days paid sick leave to workers sent home sick with swine flu or other contagious illness. Read more.
Showing posts with label Human Resources. Show all posts
Showing posts with label Human Resources. Show all posts
Tuesday, November 17, 2009
Congress to Consider Emergency Paid Leave Bill
From SHRM (Society of Human Resources Managers)
In response to the outbreak of the H1N1 flu virus, U.S. Rep. George Miller, D-Calif., introduced emergency legislation (H.R. 3991) that would provide five paid sick days to workers with contagious diseases who are told by their employers to stay home.
Miller, who chairs the House Education and Labor Committee, told reporters that the legislation was needed to help stop the spread of the expanding H1N1 pandemic. To emphasize that point, Miller named the proposal the Emergency Influenza Containment Act.
“Sick workers advised to stay home by their employers shouldn’t have to choose between their livelihood, and their co-workers’ or customers’ health,” Miller said. “This will not only protect employees, but it will save employers money by ensuring that sick employees don’t spread infection to co-workers and customers, and will relieve the financial burden on our health system swamped by those suffering from H1N1.” Read more.
Bill Leonard is senior writer for SHRM.
In response to the outbreak of the H1N1 flu virus, U.S. Rep. George Miller, D-Calif., introduced emergency legislation (H.R. 3991) that would provide five paid sick days to workers with contagious diseases who are told by their employers to stay home.
Miller, who chairs the House Education and Labor Committee, told reporters that the legislation was needed to help stop the spread of the expanding H1N1 pandemic. To emphasize that point, Miller named the proposal the Emergency Influenza Containment Act.
“Sick workers advised to stay home by their employers shouldn’t have to choose between their livelihood, and their co-workers’ or customers’ health,” Miller said. “This will not only protect employees, but it will save employers money by ensuring that sick employees don’t spread infection to co-workers and customers, and will relieve the financial burden on our health system swamped by those suffering from H1N1.” Read more.
Bill Leonard is senior writer for SHRM.
Thursday, November 5, 2009
NLBMDA ALERT: Tell Congress to Oppose Health Care Tax Hikes on Small Business
BACKGROUND: The House Democratic leadership has unveiled their final health care reform legislation, with a vote expected before Veterans' Day - and possibly as early as this weekend. Unfortunately, the "Affordable Health Care for America Act" (H.R. 3962) contains numerous onerous provisions that will only drive up the costs for small businesses and penalize employers, rather than addressing health care costs in a meaningful way.
Some major areas of concern in H.R. 3962 for small businesses:
* Employer Mandate: Employers will be required to offer health care to full and part-time employees. All employers with a payroll of $500,000 or more will pay a payroll tax of up to 8 percent if they do not provide "qualified" health insurance to their employees.
* "Pay-or-Play": Employers who do offer benefits may still be subject to penalties if they do not offer "qualified" individual and family coverage, meet premium contribution requirements of at least 72.5% for individuals and 65% for family plans, and offer a "qualified" plan as defined by a government-appointed board. If an employee declines coverage from their employer and instead obtain coverage through the exchange, the employer will be subject to a payroll tax penalty of up to 8 percent. An employer who offers coverage other than the "qualified" plan can be assessed a penalty of $100 per employee per day, up to $500,000.
* Surtax on Small Businesses: The bill contains a surtax on individuals with incomes of $500,000 single/$1 million joint - which will also impact the 75 percent of small businesses who are structured as pass-through entities and pay their business taxes at the individual level.
* 1099 Reporting Requirements: H.R. 3962 includes increased corporate reporting requirements that will mandate that companies issue a Form 1099 to all corporations from whom they purchase goods or services, once a $600 per year per vendor threshold has been reached.
TAKE ACTION: Visit www.BuildtheVote.org to quickly send an email message to your Representative asking him/her to vote NO on H.R. 3962. You can also call your legislators through the Capitol Switchboard at 202-224-3121.
Some major areas of concern in H.R. 3962 for small businesses:
* Employer Mandate: Employers will be required to offer health care to full and part-time employees. All employers with a payroll of $500,000 or more will pay a payroll tax of up to 8 percent if they do not provide "qualified" health insurance to their employees.
* "Pay-or-Play": Employers who do offer benefits may still be subject to penalties if they do not offer "qualified" individual and family coverage, meet premium contribution requirements of at least 72.5% for individuals and 65% for family plans, and offer a "qualified" plan as defined by a government-appointed board. If an employee declines coverage from their employer and instead obtain coverage through the exchange, the employer will be subject to a payroll tax penalty of up to 8 percent. An employer who offers coverage other than the "qualified" plan can be assessed a penalty of $100 per employee per day, up to $500,000.
* Surtax on Small Businesses: The bill contains a surtax on individuals with incomes of $500,000 single/$1 million joint - which will also impact the 75 percent of small businesses who are structured as pass-through entities and pay their business taxes at the individual level.
* 1099 Reporting Requirements: H.R. 3962 includes increased corporate reporting requirements that will mandate that companies issue a Form 1099 to all corporations from whom they purchase goods or services, once a $600 per year per vendor threshold has been reached.
TAKE ACTION: Visit www.BuildtheVote.org to quickly send an email message to your Representative asking him/her to vote NO on H.R. 3962. You can also call your legislators through the Capitol Switchboard at 202-224-3121.
Wednesday, November 4, 2009
Georgia Appellate Court Voids Restrictive Covenant in Employment Contract
10/5/2009
By Diane Cadrain
The Georgia Court of Appeals voided the noncompetition clause in an employment contract, finding that it was overbroad because it failed to properly limit the territory to which it applied.
Mary Squire worked as a tax professional at an H & R Block office in Gainesville, Georgia. Her job required her to prepare and file tax returns for individual Block clients. After four months of this work, Block hired her as the office manager for her office for the 2008 tax season. In her capacity as an office manager, Squire had access to Block's client database for the entire Gainesville District. Her employment contract for the office manager job contained certain post-employment restrictive covenants, including noncompetition and nonsolicitation clauses, which barred her from setting up or working for a competing business within 10 miles from Block's Gainesville district and soliciting Block clients.
In early December 2008, Squire resigned from Block, but worked for approximately two more weeks after giving her notice of her resignation.
During that time she continued to have access to the Block client database for the Gainesville District.
In early January 2009, Squire's former district manager at Block saw Squire pictured, together with other former Block employees, in an advertisement for Paramount. The ad referred to Paramount's "tax professionals, pictured above." Shortly thereafter, Paramount sent out a business-solicitation letter to almost 6,000 people, offering them $30 off on tax preparation services, and stating that many recipients of the letter may have used Paramount's professionals when they previously worked at "another company around the block." The letter then gave the names of Paramount's "Tax Preparers," each of whom was a former Block employee, and specified the Paramount location where each individual was working.
Block sued Squire and Paramount for breach of the contract covenants. A trial court ruled that the covenants were enforceable and that Squire had breached them. Squire and Paramount appealed.
The appellate court first addressed whether the restrictive covenants in Squire's employment contract were enforceable. Such covenants, the court stated, will be enforced only if they are reasonable as to: (1) duration;
(2) the capacity in which the employee is prohibited from competing against his former employer; and (3) the geographic territory in which the former employee is restricted from working.
Applying these principles, the appellate court found that the restrictive covenants were unenforceable because the noncompetition clause was overbroad in that it failed to properly limit the territory to which it applied.
To be enforceable, the court said, a non-competition clause must contain a territorial limitation sufficient to give the employee notice of what constitutes a violation by specifying the territory in which the employee's conduct is restricted.
Squire's contract barred her from working for any employer whose business included the preparation and electronic filing of income-tax returns, if that employer was located, conducted business, or solicited business in Block's Gainesville District or within 10 miles of its borders. But, the court said, the contract failed to limit the prohibited conduct to a specific geographic area. In fact, on its face, according to the court, the contract language would have prevented Squire from accepting employment anywhere in the United States, if her prospective employer engages in the preparation and electronic filing of tax returns and also either has an office or advertises in, or within ten miles of, Block's Gainesville District.
Significantly, the court stated, the restriction would apply even if Squire were not going to work at a location within ten miles of the district. It would bar Squire from accepting employment, for example, at the Atlanta, Savannah, Macon, or Columbus office of a statewide tax preparation or accounting firm, if that firm also had an office in or advertised within ten miles of the Gainesville District. Similarly, assuming that one or more of Block's national competitors has offices or advertises within ten miles of the Gainesville District, this language would prevent Squire from accepting a position with such an entity, even if she were relocating out-of-state.
In light of those provisions, the court found that the contract overprotected Block's business interest in the customer relationships Squire may have developed while at Block, and it did so at the expense of her right to earn a living and her ability to determine with certainty the area within which [her] post-employment actions are restricted.
Given its overbreadth, the noncompetition covenant contained in Squire's employment contract was unenforceable as a matter of law, the court concluded. And because the noncompetition clause was unenforceable, the nonsolicitation clause included in the agreement was likewise unenforceable.
The Court of Appeals reversed the lower court's findings.
About the author.
Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years. She is a member of the Human Resource Association of Central Connecticut.
Editor's Note: This article should not be construed as legal advice.
Paramount Tax & Accounting, LLC v. H & R Block Eastern Enterprises, Inc., Ga. Ct. App., No. A09A1542 (Aug. 6, 2009).
By Diane Cadrain
The Georgia Court of Appeals voided the noncompetition clause in an employment contract, finding that it was overbroad because it failed to properly limit the territory to which it applied.
Mary Squire worked as a tax professional at an H & R Block office in Gainesville, Georgia. Her job required her to prepare and file tax returns for individual Block clients. After four months of this work, Block hired her as the office manager for her office for the 2008 tax season. In her capacity as an office manager, Squire had access to Block's client database for the entire Gainesville District. Her employment contract for the office manager job contained certain post-employment restrictive covenants, including noncompetition and nonsolicitation clauses, which barred her from setting up or working for a competing business within 10 miles from Block's Gainesville district and soliciting Block clients.
In early December 2008, Squire resigned from Block, but worked for approximately two more weeks after giving her notice of her resignation.
During that time she continued to have access to the Block client database for the Gainesville District.
In early January 2009, Squire's former district manager at Block saw Squire pictured, together with other former Block employees, in an advertisement for Paramount. The ad referred to Paramount's "tax professionals, pictured above." Shortly thereafter, Paramount sent out a business-solicitation letter to almost 6,000 people, offering them $30 off on tax preparation services, and stating that many recipients of the letter may have used Paramount's professionals when they previously worked at "another company around the block." The letter then gave the names of Paramount's "Tax Preparers," each of whom was a former Block employee, and specified the Paramount location where each individual was working.
Block sued Squire and Paramount for breach of the contract covenants. A trial court ruled that the covenants were enforceable and that Squire had breached them. Squire and Paramount appealed.
The appellate court first addressed whether the restrictive covenants in Squire's employment contract were enforceable. Such covenants, the court stated, will be enforced only if they are reasonable as to: (1) duration;
(2) the capacity in which the employee is prohibited from competing against his former employer; and (3) the geographic territory in which the former employee is restricted from working.
Applying these principles, the appellate court found that the restrictive covenants were unenforceable because the noncompetition clause was overbroad in that it failed to properly limit the territory to which it applied.
To be enforceable, the court said, a non-competition clause must contain a territorial limitation sufficient to give the employee notice of what constitutes a violation by specifying the territory in which the employee's conduct is restricted.
Squire's contract barred her from working for any employer whose business included the preparation and electronic filing of income-tax returns, if that employer was located, conducted business, or solicited business in Block's Gainesville District or within 10 miles of its borders. But, the court said, the contract failed to limit the prohibited conduct to a specific geographic area. In fact, on its face, according to the court, the contract language would have prevented Squire from accepting employment anywhere in the United States, if her prospective employer engages in the preparation and electronic filing of tax returns and also either has an office or advertises in, or within ten miles of, Block's Gainesville District.
Significantly, the court stated, the restriction would apply even if Squire were not going to work at a location within ten miles of the district. It would bar Squire from accepting employment, for example, at the Atlanta, Savannah, Macon, or Columbus office of a statewide tax preparation or accounting firm, if that firm also had an office in or advertised within ten miles of the Gainesville District. Similarly, assuming that one or more of Block's national competitors has offices or advertises within ten miles of the Gainesville District, this language would prevent Squire from accepting a position with such an entity, even if she were relocating out-of-state.
In light of those provisions, the court found that the contract overprotected Block's business interest in the customer relationships Squire may have developed while at Block, and it did so at the expense of her right to earn a living and her ability to determine with certainty the area within which [her] post-employment actions are restricted.
Given its overbreadth, the noncompetition covenant contained in Squire's employment contract was unenforceable as a matter of law, the court concluded. And because the noncompetition clause was unenforceable, the nonsolicitation clause included in the agreement was likewise unenforceable.
The Court of Appeals reversed the lower court's findings.
About the author.
Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years. She is a member of the Human Resource Association of Central Connecticut.
Editor's Note: This article should not be construed as legal advice.
Paramount Tax & Accounting, LLC v. H & R Block Eastern Enterprises, Inc., Ga. Ct. App., No. A09A1542 (Aug. 6, 2009).
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Tuesday, November 3, 2009
News You Can Use
Product Information: Stanley and Blecker Decker to Merge
The Stanley Works and Black & Decker announced today they will merge to create Stanley Black & Decker, an $8.4 billion global tool company. The deal is worth $4.5 billion, the companies said in a joint news release. Read more.
September Construction Spending Up 0.08%
Construction spending in September posted a better-than-expected performance, powered by the largest jump in housing construction in more than six years.
The advance spurred hope that the battered housing sector is starting to turn around and will provide support for the overall economy as it struggles to emerge from the worst recession since the 1930s. Read more.
Employment costs rise at slowest pace since 1982
Employment costs rose by the smallest amount on record in the 12 months ending in September, as high unemployment restrained wage and benefit growth.
The data shows that employers face little pressure to raise pay, even as the economy recovers. The weak labor market makes it difficult for people with jobs to demand higher pay and benefits. Read more.
Have you seen EcoHome?
The Stanley Works and Black & Decker announced today they will merge to create Stanley Black & Decker, an $8.4 billion global tool company. The deal is worth $4.5 billion, the companies said in a joint news release. Read more.
September Construction Spending Up 0.08%
Construction spending in September posted a better-than-expected performance, powered by the largest jump in housing construction in more than six years.
The advance spurred hope that the battered housing sector is starting to turn around and will provide support for the overall economy as it struggles to emerge from the worst recession since the 1930s. Read more.
Employment costs rise at slowest pace since 1982
Employment costs rose by the smallest amount on record in the 12 months ending in September, as high unemployment restrained wage and benefit growth.
The data shows that employers face little pressure to raise pay, even as the economy recovers. The weak labor market makes it difficult for people with jobs to demand higher pay and benefits. Read more.
Have you seen EcoHome?
Tuesday, October 6, 2009
On Safety: Six Ways to Address Distracted Driving
At least one of the organizations sending an official to speak at next week's Distracted Driving Summit supports technology as part of the solution. The Governors Highway Safety Association listed six ways the federal government could address the problem without penalizing states that fail to enact texting or calling bans; GHSA is already on record as stating drivers should not use cell phones for any purpose while they are driving.
"To address this growing problem, the federal government does not need to sanction states that do not pass cell phone or texting while driving bans. Rather, there are a variety of actions the federal government can take to help states best respond to distracted driving," the organization stated in a Sept. 14 statement of its position. GHSA Chairman Vernon F. Betkey Jr. is scheduled to speak Oct. 1 at the summit as one of the Legislation, Regulation and Enforement panelists at the summit. Read more.
"To address this growing problem, the federal government does not need to sanction states that do not pass cell phone or texting while driving bans. Rather, there are a variety of actions the federal government can take to help states best respond to distracted driving," the organization stated in a Sept. 14 statement of its position. GHSA Chairman Vernon F. Betkey Jr. is scheduled to speak Oct. 1 at the summit as one of the Legislation, Regulation and Enforement panelists at the summit. Read more.
On Safety: OSHA News - Advancing PPE Regulations
OSHA updates its PPE standards
Last month, the Occupational Safety and Health Administration revamped personal protective equipment standards for general industry, shipyard, longshoring and marine terminals.
The changes pertain to eye, face, head and foot safety. Among other things, they require that filter lenses of eye safety devices meet standards concerning the "transmission of radiant energy such as light or infrared."In revamping the standards, OSHA aims to keep them in line with technological advances and applicable national consensus standards. It also seeks to ensure that PPE design and construction responds to job-specific hazards.
The final rule takes effect on October 9. Read the OSHA Trade News Release here.
Source.
Last month, the Occupational Safety and Health Administration revamped personal protective equipment standards for general industry, shipyard, longshoring and marine terminals.
The changes pertain to eye, face, head and foot safety. Among other things, they require that filter lenses of eye safety devices meet standards concerning the "transmission of radiant energy such as light or infrared."In revamping the standards, OSHA aims to keep them in line with technological advances and applicable national consensus standards. It also seeks to ensure that PPE design and construction responds to job-specific hazards.
The final rule takes effect on October 9. Read the OSHA Trade News Release here.
Source.
Tuesday, September 22, 2009
Protecting Your Business
By Business and Legal Reports, Inc.
After a Georgia company reduced a vice-president’s bonus, he decided to open his own business. He discussed his departure with his supervisors and thought he had arrived at an amicable parting, only to be sued after he left the company.
What happened. “Fawkes” owned a share of an insurance company named Hamilton, Dorsey & Alston. Wachovia Insurance Services purchased Hamilton on May 1, 2001. Fawkes received cash and Wachovia Insurance stock and was given a four-year contract to work as a senior vice president in Wachovia’s employee benefits area.
In September 2004, Wachovia Insurance’s president asked Fawkes to sign a confidentiality and nonsolicitation agreement that would make Fawkes an at-will employee. Two years later, Wachovia reduced Fawkes’ bonus and commission structure. In April 2007, Fawkes decided to resign and open a competing business. He met with the company president and his supervisor to discuss the plan and to assure them that he intended to honor the nonsolicitation agreement. Fawkes’ supervisor formally informed the department that Fawkes was leaving to start his own firm.
On April 23, with his supervisor’s permission, Fawkes sent a letter to 90 of his business contacts informing them that he was starting his own business. On April 30, his employment with Wachovia Insurance ended. Two months later, Wachovia sued Fawkes and his new business for breach of the nonsolicitation agreement, misappropriation of trade secrets, and computer theft. Fawkes asked the court to dismiss the case.
What the court said. Wachovia alleged that Fawkes had breached his written agreement not to solicit clients. Fawkes countered that the covenant imposed an unreasonable restraint on his ability to do business because it forbade him to solicit clients that had already ended their relationships with Wachovia Insurance. The court agreed with Fawkes; the covenant defined a customer as “any individual or entity that has purchased an insurance contract through the Company,” which the court found to include too many customers that no longer had a relationship with Wachovia. It thus found the nonsolicitation agreement too broad to be enforceable.
Wachovia also complained that Fawkes had breached the agreement by hiring two of its employees for his new company. In fact the employees had approached Fawkes and he had not approached or solicited them, so the court found no breach.
Wachovia next argued that Fawkes had misappropriated trade secrets by using a Wachovia Insurance client list from password-protected company computers. To obtain relief under the Georgia Trade Secrets Act (GA Code Sec. 10-1-760), Wachovia needed to show that this information was not commonly known to the public. But Fawkes proved that all of the information was available on a public website (“freeERISA.com”), commonly used by employee benefits companies for prospecting for customers. The court ruled that Fawkes had not misappropriated Wachovia’s trade secrets.
Finally, Wachovia claimed that Fawkes had committed “computer theft” because Wachovia Insurance employees who moved to Fawkes’ new company used Wachovia’s client contact information on their Blackberry® devices in their new employment. GA Code Sec. 16-9-93(a) defines computer theft as “knowingly using a computer network without permission and with the intention of taking someone else’s property.”
But Fawkes’ employees were merely using Blackberry devices that contained information Wachovia Insurance also had; Wachovia could not prove that they were using its own computer network without permission and intending to steal Wachovia’s data. The court agreed that Wachovia had shown no evidence of computer theft. It dismissed all the claims against Fawkes.
Wachovia Insurance Services v. Fallon, Ga. Ct. App., No. A09A0140 (July 14, 2009).
Professional Pointer: This employer filed this lawsuit to send “a message to others,” to communicate to future employees that the company would not tolerate them taking its business. Before trying to send a similar message, make sure you have a solid case with real damages.
Contributed by BLR, Inc. Read plain-English analysis on Employment Contracts in Georgia.
After a Georgia company reduced a vice-president’s bonus, he decided to open his own business. He discussed his departure with his supervisors and thought he had arrived at an amicable parting, only to be sued after he left the company.
What happened. “Fawkes” owned a share of an insurance company named Hamilton, Dorsey & Alston. Wachovia Insurance Services purchased Hamilton on May 1, 2001. Fawkes received cash and Wachovia Insurance stock and was given a four-year contract to work as a senior vice president in Wachovia’s employee benefits area.
In September 2004, Wachovia Insurance’s president asked Fawkes to sign a confidentiality and nonsolicitation agreement that would make Fawkes an at-will employee. Two years later, Wachovia reduced Fawkes’ bonus and commission structure. In April 2007, Fawkes decided to resign and open a competing business. He met with the company president and his supervisor to discuss the plan and to assure them that he intended to honor the nonsolicitation agreement. Fawkes’ supervisor formally informed the department that Fawkes was leaving to start his own firm.
On April 23, with his supervisor’s permission, Fawkes sent a letter to 90 of his business contacts informing them that he was starting his own business. On April 30, his employment with Wachovia Insurance ended. Two months later, Wachovia sued Fawkes and his new business for breach of the nonsolicitation agreement, misappropriation of trade secrets, and computer theft. Fawkes asked the court to dismiss the case.
What the court said. Wachovia alleged that Fawkes had breached his written agreement not to solicit clients. Fawkes countered that the covenant imposed an unreasonable restraint on his ability to do business because it forbade him to solicit clients that had already ended their relationships with Wachovia Insurance. The court agreed with Fawkes; the covenant defined a customer as “any individual or entity that has purchased an insurance contract through the Company,” which the court found to include too many customers that no longer had a relationship with Wachovia. It thus found the nonsolicitation agreement too broad to be enforceable.
Wachovia also complained that Fawkes had breached the agreement by hiring two of its employees for his new company. In fact the employees had approached Fawkes and he had not approached or solicited them, so the court found no breach.
Wachovia next argued that Fawkes had misappropriated trade secrets by using a Wachovia Insurance client list from password-protected company computers. To obtain relief under the Georgia Trade Secrets Act (GA Code Sec. 10-1-760), Wachovia needed to show that this information was not commonly known to the public. But Fawkes proved that all of the information was available on a public website (“freeERISA.com”), commonly used by employee benefits companies for prospecting for customers. The court ruled that Fawkes had not misappropriated Wachovia’s trade secrets.
Finally, Wachovia claimed that Fawkes had committed “computer theft” because Wachovia Insurance employees who moved to Fawkes’ new company used Wachovia’s client contact information on their Blackberry® devices in their new employment. GA Code Sec. 16-9-93(a) defines computer theft as “knowingly using a computer network without permission and with the intention of taking someone else’s property.”
But Fawkes’ employees were merely using Blackberry devices that contained information Wachovia Insurance also had; Wachovia could not prove that they were using its own computer network without permission and intending to steal Wachovia’s data. The court agreed that Wachovia had shown no evidence of computer theft. It dismissed all the claims against Fawkes.
Wachovia Insurance Services v. Fallon, Ga. Ct. App., No. A09A0140 (July 14, 2009).
Professional Pointer: This employer filed this lawsuit to send “a message to others,” to communicate to future employees that the company would not tolerate them taking its business. Before trying to send a similar message, make sure you have a solid case with real damages.
Contributed by BLR, Inc. Read plain-English analysis on Employment Contracts in Georgia.
NLBMDA News - Government Released Guildes on H1N1
The U.S. Centers for Disease Control and Prevention (CDC) and the Department of Homeland Security (DHS) have released guidance for employers of all sizes to prepare for the possibility of the H1N1 flu in the workplace over the coming months. An "H1N1 Preparedness Guide for Small Businesses" was a also recently released. For more information and to download the guide, visit www.flu.gov. Source.
NLBMDA News - Rumors Continue to Fly on Card Check
Senators speaking to union conferences last week continued to assert that support is building for a so-called "compromise" that may remove the card check component of the "Employee Free Choice Act" but still make it easier for employees to form a union by limiting the time for employers to respond and still including dangerous binding arbitration requirements. Read more.
Thursday, September 10, 2009
CSA Introduces New Cost-Saving Health Insurance Program
By: Jim Moody, CAE
CSA President
When we’ve asked members about the challenges you face (aside from the global economic issues we can’t solve), we’ve consistently heard from you that health insurance is one of the biggest thorns in your side.
The federal government is working on that issue, but I don’t put a lot of hope in their efforts. I suspect that at the end of the day, health insurance will still be incredibly expensive for small business, and that the pressure for you to provide coverage for your employees will be intense.
While I’m not ready to say we’ve solved problem that has confounded experts and the government for many years, I am happy to say we have found an option that may present some ideas you haven’t explored previously.
For more than a year, CSA has been diligently looking at a variety of options to allow you to provide health insurance benefits without breaking the bank. That search ended last month when the Board voted to endorse a program by Association Health Programs out of Overland Park, KS.
This company is essentially an independent agency with the ability to write policies from a variety of companies, including all the big names. But this is where the similarity to traditional programs ends.
Rather than looking for the best group rate, Association Health Programs starts with individual plans. These are typically less expensive than group plans, and there are some other benefits as well. For instance, the plans are portable, meaning if the employee loses his job, he can keep his health insurance as long as he’s willing to pay the premium himself (and you don’t have to worry about administering COBRA benefits). Also, the policy can’t be cancelled for any reason (group plans can be cancelled). It may also allow you to tailor coverage to the individual’s situation for the best combination of price and coverage, which may be different from employee to employee.
One downside is that in some states (Georgia is one), insurance companies can choose not to write initial coverage for some individuals. (Alabama is a different story – everyone with an Alabama residence or an employer in Alabama is guaranteed coverage through a state risk pool.) When there are employees who can’t be insured individually, a group plan must remain. The goal then becomes to make the group as small as legally possible and cover everyone else as an individual.
As you might guess, this approach can be complicated. On the other hand, the cost savings can be dramatic – 30-40% is not unusual. Each company is different, so the plan has to be tailored for your needs and must take into account the health of your employees. While I can’t promise that everyone will see this kind of savings, the due diligence we’ve done convinces me that this program really will work for many of you. The only way to know is to call Association Health Programs to discuss your specific situation and let them work on quotes for you.
Note that this is not a health savings account that requires lots of administration nor is it some fly-by-night option that will fold without notice. The company has been in business for years and has hundreds of thousands of people covered through various plans. That large number gives AHP buying power you can’t find in a “regular” agent, and that is the key to providing lower cost premiums.
We’ll be working hard over the next few months to educate you more about this option. I suspect you are intrigued but have questions, which is reasonable. Feel free to contact me with general questions or call AHP directly to quiz them on how this all works. There’s also a website with more information: http://www.associationpros.com/assoc/csa. You can also call toll-free at (888) 450-3040 for more information.
Again, this may not work for everyone. But it does offer you an option you probably haven’t considered before, and it has the potential to save you a fair amount of money. Now, more than ever, something like this is worth exploring.
CSA President
When we’ve asked members about the challenges you face (aside from the global economic issues we can’t solve), we’ve consistently heard from you that health insurance is one of the biggest thorns in your side.
The federal government is working on that issue, but I don’t put a lot of hope in their efforts. I suspect that at the end of the day, health insurance will still be incredibly expensive for small business, and that the pressure for you to provide coverage for your employees will be intense.
While I’m not ready to say we’ve solved problem that has confounded experts and the government for many years, I am happy to say we have found an option that may present some ideas you haven’t explored previously.
For more than a year, CSA has been diligently looking at a variety of options to allow you to provide health insurance benefits without breaking the bank. That search ended last month when the Board voted to endorse a program by Association Health Programs out of Overland Park, KS.
This company is essentially an independent agency with the ability to write policies from a variety of companies, including all the big names. But this is where the similarity to traditional programs ends.
Rather than looking for the best group rate, Association Health Programs starts with individual plans. These are typically less expensive than group plans, and there are some other benefits as well. For instance, the plans are portable, meaning if the employee loses his job, he can keep his health insurance as long as he’s willing to pay the premium himself (and you don’t have to worry about administering COBRA benefits). Also, the policy can’t be cancelled for any reason (group plans can be cancelled). It may also allow you to tailor coverage to the individual’s situation for the best combination of price and coverage, which may be different from employee to employee.
One downside is that in some states (Georgia is one), insurance companies can choose not to write initial coverage for some individuals. (Alabama is a different story – everyone with an Alabama residence or an employer in Alabama is guaranteed coverage through a state risk pool.) When there are employees who can’t be insured individually, a group plan must remain. The goal then becomes to make the group as small as legally possible and cover everyone else as an individual.
As you might guess, this approach can be complicated. On the other hand, the cost savings can be dramatic – 30-40% is not unusual. Each company is different, so the plan has to be tailored for your needs and must take into account the health of your employees. While I can’t promise that everyone will see this kind of savings, the due diligence we’ve done convinces me that this program really will work for many of you. The only way to know is to call Association Health Programs to discuss your specific situation and let them work on quotes for you.
Note that this is not a health savings account that requires lots of administration nor is it some fly-by-night option that will fold without notice. The company has been in business for years and has hundreds of thousands of people covered through various plans. That large number gives AHP buying power you can’t find in a “regular” agent, and that is the key to providing lower cost premiums.
We’ll be working hard over the next few months to educate you more about this option. I suspect you are intrigued but have questions, which is reasonable. Feel free to contact me with general questions or call AHP directly to quiz them on how this all works. There’s also a website with more information: http://www.associationpros.com/assoc/csa. You can also call toll-free at (888) 450-3040 for more information.
Again, this may not work for everyone. But it does offer you an option you probably haven’t considered before, and it has the potential to save you a fair amount of money. Now, more than ever, something like this is worth exploring.
OSHA to Target Nursing Homes, Manufacturing Facilities for Inspections
OSHA said its Site-Specific Targeting 2009 program will focus enforcement efforts on nearly 4,000 high-hazard worksites on the agency's list for comprehensive safety inspections. The agency said the SST program helps it direct enforcement resources to workplaces such as manufacturing and nursing homes where the highest rate of injuries and illnesses occur.
Changes to this year's program include dividing the primary list of establishments slated for inspection into three sectors--manufacturing, non-manufacturing, and nursing homes. Rather than using one rate for all establishments, OSHA established minimum injury and illness rates for each group, allowing the agency to inspect even more establishments that exceed the minimum rates specific to that sector. Additionally, some facilities that did not answer an OSHA Data Initiative survey will be added to the inspection list. The agency said its intent is to deter employers from not responding to avoid inspection. Read more.
Changes to this year's program include dividing the primary list of establishments slated for inspection into three sectors--manufacturing, non-manufacturing, and nursing homes. Rather than using one rate for all establishments, OSHA established minimum injury and illness rates for each group, allowing the agency to inspect even more establishments that exceed the minimum rates specific to that sector. Additionally, some facilities that did not answer an OSHA Data Initiative survey will be added to the inspection list. The agency said its intent is to deter employers from not responding to avoid inspection. Read more.
Wednesday, September 9, 2009
Ask the Human Resources Experts
Question: Do we have to pay employees for their time spent going to mandatory drug testing?
Answer: Yes. The Department of Labor (DOL) does not oversee workplace drug testing, but the Fair Labor Standards Act (FLSA) provides guidance as to what is considered compensable hours worked.
For various reasons (e.g., per regulations, drug-free workplace, position relevance, etc.), some employers require employees to participate in mandatory drug testing prior to the beginning of employment and/or after hire. Employers are not required to compensate a person for any time spent on pre-employment drug testing. However, once the employee is hired, FLSA guidance requires employers to compensate employees when they go for such testing because the drug testing is mandated by the employer. According to the DOL web site, “Whenever you impose special tests, requirements or conditions that your employee must meet, time he or she spends traveling to and from the tests, waiting for and undergoing these tests, or meeting the requirements is probably hours worked.” Because the employee must participate in the testing as a condition of employment, it will restrict the employee from performing other responsibilities. Therefore, the time of day an employee is scheduled for the testing (e.g., before work, during work hours or after work) does not determine whether the employee will be compensated. The facts that the testing is under the employer’s control, related to the company business and a condition of employment will meet the standard for that time being counted toward hours worked.
Employers should consider scheduling employee drug testing during normally scheduled work hours. This practice could avoid any potential overtime issues because of the additional compensable time spent participating in the drug testing.
From the Society of Human Resources Managers
Answer: Yes. The Department of Labor (DOL) does not oversee workplace drug testing, but the Fair Labor Standards Act (FLSA) provides guidance as to what is considered compensable hours worked.
For various reasons (e.g., per regulations, drug-free workplace, position relevance, etc.), some employers require employees to participate in mandatory drug testing prior to the beginning of employment and/or after hire. Employers are not required to compensate a person for any time spent on pre-employment drug testing. However, once the employee is hired, FLSA guidance requires employers to compensate employees when they go for such testing because the drug testing is mandated by the employer. According to the DOL web site, “Whenever you impose special tests, requirements or conditions that your employee must meet, time he or she spends traveling to and from the tests, waiting for and undergoing these tests, or meeting the requirements is probably hours worked.” Because the employee must participate in the testing as a condition of employment, it will restrict the employee from performing other responsibilities. Therefore, the time of day an employee is scheduled for the testing (e.g., before work, during work hours or after work) does not determine whether the employee will be compensated. The facts that the testing is under the employer’s control, related to the company business and a condition of employment will meet the standard for that time being counted toward hours worked.
Employers should consider scheduling employee drug testing during normally scheduled work hours. This practice could avoid any potential overtime issues because of the additional compensable time spent participating in the drug testing.
From the Society of Human Resources Managers
CDC Guidelines Urge Employers to Prepare Now for Upcoming Flu Season
From Jackson Lewis
Anxiety over the new H1N1 flu may have eased during the summer, but the federal government has reminded us that seasonal and H1N1 flu may again command concern with the coming of fall. The Centers for Disease Control and Prevention, anticipating a spread of the H1N1 flu, has released new guidelines (available at here) to help businesses and employers prepare now for the impact seasonal and H1N1 flu could have on employers, employees and operations.
The CDC warns, “The severity of illness that 2009 H1N1 influenza flu will cause (including hospitalizations and deaths) or the amount of illness that may occur as a result of seasonal influenza during the 2009–2010 influenza season cannot be predicted with a high degree of certainty. Therefore, employers should plan to be able to respond in a flexible way to varying levels of severity and be prepared to refine their pandemic influenza response plans if a potentially more serious outbreak of influenza evolves during the fall and winter.” Learn about the guidelines here.
Anxiety over the new H1N1 flu may have eased during the summer, but the federal government has reminded us that seasonal and H1N1 flu may again command concern with the coming of fall. The Centers for Disease Control and Prevention, anticipating a spread of the H1N1 flu, has released new guidelines (available at here) to help businesses and employers prepare now for the impact seasonal and H1N1 flu could have on employers, employees and operations.
The CDC warns, “The severity of illness that 2009 H1N1 influenza flu will cause (including hospitalizations and deaths) or the amount of illness that may occur as a result of seasonal influenza during the 2009–2010 influenza season cannot be predicted with a high degree of certainty. Therefore, employers should plan to be able to respond in a flexible way to varying levels of severity and be prepared to refine their pandemic influenza response plans if a potentially more serious outbreak of influenza evolves during the fall and winter.” Learn about the guidelines here.
Practicing Positive Employee Relations
In CSA’s continuing desire to improve member services, the idea of this desk book was born. This book is intended to provide members' executives and managers with a source of information and guidance in attaining positive employee relations at their individual companies. Use this book as a starting point for auditing, modifying, and developing your own personnel practices and procedures that are best suited for your individual corporate culture. We hope that you use this book as a true "desk book." Keep it handy and refer to it often in managing employees.[1]
This book is available at a member discount of $59. To order, please email your name and shipping address to lisagolden@gocsa.com. We will invoice you for the amount when the order is shipped.
[1] This desk book is intended only as a guide to provide general information on the topics discussed here. It is not intended as legal advice on particular matters. Since many of the issues addressed in this desk book are legal in nature, a review of the specific facts relevant to the particular member company should be made prior to implementation of any of the concepts set forth here. Accordingly, members are strongly advised to consult with counsel concerning the applicability of any of the matters discussed in this desk book to their particular companies and to the particular situation at issue.
Thursday, July 16, 2009
Georgia Passes New Law That May Enhance Enforceability of Non-Compete Agreements
From Jackson-Lewis
The Georgia legislature has passed a new law that makes employee restrictive covenants and non-compete agreements easier to enforce. While House Bill 173 has been signed by the governor, it will not go into effect unless the Georgia Constitution is amended in a statewide referendum in the 2010 general election. If implemented, Georgia will transition from a state where such agreements can be difficult to uphold to one where such agreements are regularly enforced, thus joining the majority. Read more.
The Georgia legislature has passed a new law that makes employee restrictive covenants and non-compete agreements easier to enforce. While House Bill 173 has been signed by the governor, it will not go into effect unless the Georgia Constitution is amended in a statewide referendum in the 2010 general election. If implemented, Georgia will transition from a state where such agreements can be difficult to uphold to one where such agreements are regularly enforced, thus joining the majority. Read more.
Wednesday, July 15, 2009
NLBMDA News - Card Check Negotiations Given New Life By Franken's Arrival
Sen. Al Franken (D-MN) was finally sworn in to the U.S. Senate on July 9, giving the Democrats the 60-vote block they need to override procedural hurtles on controversial legislation such as the so-called "Employee Free Choice Act" (H.R.1409/S.560). While several key Democrats continue to hold firm in opposition to the card check legislation as currently written, Sen. Tom Harkin (D-IA) continues to press for support of a "compromise" that will garner enough votes to bring the legislation to the Senate floor before the end of the month. Dealers who are concerned about legislation that undermines the employee-employer bargaining relationship should visit www.BuildtheVote.org to remind your Senators to hold firm in opposition to card check legislation in any form. Source.
NLBMDA News - DHS to Increase I-9 Compliance Efforts; Senate Seeks to Preserve "No Match" Rule
Recently, the Immigration and Customs Enforcement (ICE) agency announced that it was increasing its I-9 compliance enforcement efforts. The I-9 form is the eligibility-for-employment form that requires verification of certain documents. At the same time, Homeland Security Secretary Janet Napolitano announced that the agency would rescind the controversial Social Security No-Match Rule, which had been blocked by a court order. Read more.
Wednesday, July 1, 2009
NLBMDA News - Mandatory Paid Sick Leave Legislation Introduced
Rep. Rosa DeLauro (D-CT) and Sen. Edward Kennedy (D-MA) have introduced the Healthy Families Act (H.R. 2460/S. 1152) which will set a standard for mandatory paid sick leave for all employees. The bill would require an employer to provide each employee with no less than 1 hour of accrued sick time for every 30 hours worked up to a total of 56 hours of paid sick time in a calendar year. Read more.
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