Tag Archives: compliance

Spotting – and Stopping – FMLA Abuse

It’s one of the biggest challenges for HR – FMLA abuse. You don’t want to run afoul of the law and not grand leave when it’s warranted, so most times HR just grants the leave and that’s it.

But what about the times you’re pretty sure this leave is being abused?

It’s particularly difficult when the leave is taken intermittently. How can you tell if a day here or a day there is valid?

There are red flags you can look out for. To start with, track the leave to see if there’s a pattern – long weekends, around vacation days, etc. Typically, a true illness doesn’t only flare up on Fridays.

For extreme cases, you may need surveillance. This will prove the employee is engaging in behaviors while on leave that they said they couldn’t do at work.

Corporate Counsel recommends the following investigative techniques:

  • interviews with the employee
  • consulting with a private investigator and an outside medical professiona
  • requiring employees provide medical certification (like a doctor’s note) for FMLA leave.

Certifications are a key tool in managing leave and preventing abuse. But using these effectively – and legally – is a skill in and of itself. Learn how with FMLA Medical Certification: Employer’s Guide to FMLA Trouble Spots.

This is an area every HR pro will encounter at some point in their career. Make sure you’re prepared – attend C4CM’s upcoming online event on FMLA Intermittent Leave: How to Track, Administer and Prevent Employee Abuses on February 5 at 2:00 PM ET. Can’t make it? Get the CD and stay up to date!

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This Is a Freaking Great Deal!

Seriously – this IS a freaking great deal!

The DOL is coming!  The DOL is coming!  So tighten up your Family and Medical Leave Act (FMLA) compliance efforts.

DOL Branch Chief for FMLA, Diane Dawson, recently announced the DOL is increasing the frequency of its on-site FMLA investigations. Employers should take note. The DOL recommends that employers be proactive in their approach to FMLA compliance before the DOL even knocks on the door.   That’s good advice – so take it, and clean up your FMLA compliance today.

Sign up for C4CM’s webinar on FMLA Compliance Self-Audit: Prevent and Prepare for Lawsuits and On-Site Investigations, held on Wednesday, October 23, 2013 at 2:00 PM ET, and your registration will also include the top-selling Family Medical Leave Act (FMLA) Compliance Manual – a no-fluff, plain-English report you can use to create or update your policies, train your entire staff and ensure FMLA compliance – a $349 value absolutely FREE!

Register and get your spot now for this freaking great deal! We’re so excited about it over here we can’t believe it!

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HIPAA Compliance by 9/23 – and Model Notices Available Today!

Organizations handling protected health information (PHI) have until Sept. 23 to comply with new security and privacy requirements that were included in the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009.

After that date, all covered entities, including online storage vendors and cloud service providers, will be subject to new breach notification standards and limitations on how they can use and disclose PHI. They will also be required to ensure that their business associates and subcontractors are compliant with the privacy and security requirements of the Health Insurance Portability and Accountability Act (HIPAA). The HITECH Act amended portions of HIPAA by adding new security and privacy provisions on patient information.

Kindly, the Department of Health and Human Services (HHS) has published model Notices for providers and health plans – just 6 days before compliance begins! Seyfarth Shaw offers a Management Alert on it, with surprisingly humorous elements to it.

I do suggest you read their whole Alert if you are responsible for this at your organization. For those of you who just want their snark, here it is:

Although OCR has provided various formats of the model Notices, many in bright colors with graphics, the language in each model is substantially the same. While colorful Notices are certainly eye-catching, the printing costs could exceed modest benefits budgets.

See? Lawyers can be funny!

You can see the model notices here.

Seyfarth also offer a brief to-do list, below:

  • Employers (that have not already done so) should identify which of their health and welfare plans and programs are covered entities subject to HIPAA and required to distribute a Notice.
  • Employers that sponsor and maintain both self-funded health programs and either insured health programs or individual account arrangements (such as health flexible spending accounts) should ensure that a Notice is distributed for each covered entity.
  • At this time, covered entities may have already updated their Notice or may be in the process of updating their Notice to comply with the final regulations.
  • They should determine whether to distribute their current Notice or change to the model Notice.
  • If the model notice is to be used, some customization should be done, such as adding language identifying the covered entity plans and, if self-funded, reflecting that status.

Want some help with compliance? Get C4CM’s resource HIPAA, HITECH and GINA: Compliance Strategies for the Final Rules today!

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FMLA Disputes Require a Third Opinion

The result of a new Family Medical Leave ACT (FMLA) shows that a second opinion may not be enough to reject employee leave.  

When the accused employer did so, the Minnesota court ruled in favor of the employee, stating that the company had violated the employee’s FMLA rights and unlawfully terminated the employee over the dispute.  

According to attorney Francine Breckenridge from the firm Strasburger & Price, “employers cannot use a second opinion alone to reject a workers’ FMLA leave request.”  

In addition, Breckenridge explains that employers are required to pay for the second and third medical opinions — and the medical providers rendering the opinions cannot be connected to the employers.

Read the HR Morning news article

Image: renjith krishnan / FreeDigitalPhotos.net

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Unintended Discrimination against Older Workers in the Workplace

Age discrimination can be tricky in the modern workforce. For instance, you could be discriminating against your older, more experienced employees without even realizing.

And knowing how these cases are viewed by a court of law is important to protect yourself and your organization down the line.  

In an interesting post on The HR Café blog this week, here’s a situation that many managers could easily find themselves facing:  

You’ve got an older employee named Joe on your team. It’s your job to maximize productivity, and his performance has fallen. It seems clear to you that Joe’s age is preventing him from meeting the demands of his job.

 

Can you transfer him to a lower-paying job he can handle?

  

Read the HR Café Blog article

Image: Ambro / FreeDigitalPhotos.net

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A Former Employee Files a Harassment Case against Wal-Mart

In Arkansas this week, a fired employee has filed a lawsuit for harassment against Wal-Mart Stores, Inc. The employee, who currently resides in Oklahoma, alleges that Wal-Mart is forcing him to an Arkansas court as part of a 4-year-old trade secret violation case.  

One of their computer security specialists, Mr. Gabbard had been suspected of copying documents from work. Wal-Mart asserts that he has retained confidential information after he left the company, which directly violates the employee agreement on sharing trade secrets.  

From the Wall Street Journal, Mr. Gabbard is believed to still have company documents based on postings he made on his website as recently as a month ago and on a forensics investigation of his computers, which show that he copied corporate files before leaving.    

He had been previously fired from Wal-Mart for monitoring phone conversations between other employees and a New York Times reporter. Also, he shared confidential information about a board discussion he heard through the surveillance system about a corporate sex-discrimination suit and secret plan to boost their stock price by spinning off of Sam’s Club.  

Read the Wall Street Journal article

Image: worradmu / FreeDigitalPhotos.net

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Discriminating against the Unemployed?

Several companies won’t even consider unemployed job candidates when they’re recruiting new talent. Last year in Atlanta, Sony Ericsson was in the media spotlight for such discriminatory practices, because their job listings specifically stated: “No unemployed candidates will be considered at all.”  

 

However, they’re not alone. While it is illegal to discriminate due to age, gender, or disability, it is still not breaking the law to turn away unemployed individuals for work. This discrimination against the unemployed could not come at a worse time. The Recession left at least 4 million people unemployed for a year or more.  

 

Pros

Employers have good reason to rule out the unemployed, because it can be assumed that hiring an out-of-work individual means investing in a significant amount of training so he/she can succeed in the role.

 

The longer an individual is out of the workforce, the harder it would probably be to acclimate to the job, deal with everyday stress and interpersonal conflicts, and his/her skills would likely be out of date.  

 

Cons

On the flip side, advocates for the unemployed argue that there is no basis for negative inference for people who are out of work. Many lost their jobs due to no fault of their own. Companies have had to downsize, lay out departments, go out of business, and so on.  

 

According to TIME Magazine, New Jersey recently became the first state to adopt a law making it illegal to post job listings that make current employment a condition of applying or being hired. Now, several other states are considering similar laws.  

Read the Time Magazine article

Image: xedos4 / FreeDigitalPhotos.net

  

 

 

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