Report highlights employers’ biggest concerns: ACA, new bias claims and OT regs

What are your top concerns as an employer? See what others had to say in the article by Tim Gould.

What’s keeping C-level execs up at night? Just a few small concerns like the new overtime rules, a likely increase in bias claims based on sexual orientation, the Affordable Care Act and the threat of workplace violence. 

Those are the takeaways from the 2016 Executive Employer Survey from Littler, the giant employment law firm. The fifth annual survey, completed by 844 in-house counsel, human resources professionals and C-suite executives from some of America’s largest companies, examines the key legal, economic and social issues impacting employers as the 2016 presidential election approaches.

Those pesky OT rules

As you well know, the Department of Labor (DOL) has advanced several regulatory initiatives that have brought the agency’s enforcement of federal employment laws to the forefront for employers.  This concern is no doubt driven in large part by the recently finalized Fair Labor Standard Act overtime regs, which will dramatically increase the number of Americans who can qualify for overtime pay. Although respondents completed the survey in the weeks prior to the release of the final rule, 65% had already conducted audits to identify affected employees.

“Employers are clearly feeling the impact of the DOL’s increasingly aggressive regulatory agenda, most notably the new overtime regulations,” Littler attorneys Tammy McCutchen and Lee Schreter said in a joint statement.

They added a sobering note: “While it is encouraging that the majority of respondents started to prepare before the rule was finalized, more than a quarter (28%) said they had taken no action given delays in the rulemaking process. Given that the reclassification process can take up to six months and the rule is unlikely to be blocked from going into effect on December 1, 2016, employers should move quickly to ensure compliance.”

And participants are pretty sure the DOL’s going to be aggressive about making the new rules stick: The vast majority of respondents to this year’s survey (82%) expect DOL enforcement to have an impact on their workplace over the next 12 months, with 31% anticipating a significant impact (up from 18% in the 2015 survey).

Where are the presidential candidates likely to land on employment policies? The majority of respondents (75%) said income inequality (e.g., overtime rules, state equal pay, minimum wage laws, etc.) would be a significant priority of the Democratic candidate. Only 4% felt income inequality would be a significant priority of the Republican candidate.

Top regulatory and legislative issues

With the National Labor Relations Board’s recent expansion of the definition of a “joint employer,” 70% of respondents to the Littler survey expect a rise in claims over the next year based on actions of subcontractors, staffing agencies and franchisees. Approximately half of respondents predicted higher costs (53%) and increased caution in entering into arrangements that might constitute joint employment (49%).

As was the case in the 2015 survey, 85% of employers said the Affordable Care Act (ACA) would have an impact on their workplace in the next 12 months. While two-thirds said they do not expect a repeal of the ACA if a Republican is elected president this fall, respondents saw a greater likelihood of changes to individual provisions. Fifty-three percent said a Republican administration could lead to a repeal of or changes to the Cadillac excise tax and 48% saw a likelihood for changes to the play-or-pay mandate.

Social issues come to the forefront

Today’s companies are increasingly experiencing the incursion of social issues into the workplace, the survey indicated.

In the largest year-over-year change in Littler’s survey results, 74% of respondents expect more discrimination claims over the next year related to the rights of LGBT workers (up from 31% in 2015) and 61% expect more claims based on equal pay (up from 34% in 2015).

This change is driven by LGBT discrimination and equal pay ranking among the top enforcement priorities for the Equal Employment Opportunity Commission (EEOC), but it also mirrors key focus areas for the Obama administration, government efforts at the state and federal levels, and increased public awareness.

Preventing workplace violence

In response to tragic mass shootings across the nation, companies are taking a range of actions to keep their employees safe, including updating or implementing a zero-tolerance workplace policy (52%), conducting pre-employment screenings (40%) and holding training programs (38%). Only 11% of respondents said they had not taken any action because violence is not a concern for their company.

“Putting policies in place to increase awareness of workplace violence and ensure that employees understand how to report threats in the workplace are steps that all employers would be advised to take,” said Littler’s Terri Solomon, who has extensive experience counseling employers on workplace violence prevention. “Unfortunately, even though workplace violence – and particularly active shooter instances – are statistically rare, no employer is truly immune.”

See the original article from Here.


Gould, T. (2016, July 13). Report highlights employers' biggest concerns: ACA, new bias claims and OT regs [Web log post]. Retrieved from

What You Need To Know About The EEOC’s Updated Guidelines For Retaliation

Interesting article on EEOC guideline updates from, Employee Benefit Adviser by Bobbi Kloss

Did you know that under the U. S. Equal Employment Opportunity Commission, an employee who believes that they have been retaliated against by an employer for complaining against unlawful discrimination in the workplace can file a complaint with the EEOC under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA), and/or Title II of the Genetic Information Nondiscrimination Act. It is worth noting, this is not an either or situation, meaning, an employee’s claim can cross over the various discrimination laws.

Employers with at least 15 employees — or 20 employees in age discrimination cases, including labor unions and employment agencies — are covered by EEOC laws. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information. A very important point to keep in mind: it’s illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

The EEOC laws apply to all types of work-related actions, including hiring, firing, promotions, harassment, training, wages and benefits. To put it all in perspective — and show just how large and widespread this issue is — here are some sobering statistics: charges of retaliation filed with the EEOC accounted for 44.5% of alleged basis of discrimination in FY2015 with more than 39,700 allegations filed and with monetary benefits awarded in the amount of $173.5 million (not including those paid through litigation), according to an EEOC report on litigation statistics: Retaliation-Based Charges FY 1997 - FY 2015. Compare today’s numbers to 1997, when 18,198 allegations were filed and $41.7 million in benefits were awarded. Retaliation complaints continue to be the most frequent form of alleged discrimination filed with the EEOC since 2009.

Final enforcement guidance
It is no wonder then that at the end of August the EEOC issued its final enforcement guidance on retaliation and related issues replacing its 1998 Compliance manual section on retaliation. The update also provides guidance for the “interference” (prohibiting coercion, threats or other acts that interference with exercise of rights) provision under the ADA.

The various topics explained in the new guidance include:

  • The scope of employee activity protected by the law;
  • Legal analysis to be used to determine if evidence supports a claim of retaliation;
  • Remedies available for retaliation;
  • Rules against interference with the exercise of rights under the ADA;
  • Detailed examples of employer actions that may constitute retaliation.

The EEOC also released The Small Business Fact Sheet: Retaliation and Related Issues and a set of FAQs, Questions and Answers: Enforcement Guidance on Retaliation and Related Issues for clarification on main topic points for employers.

As a trusted benefit adviser, why should you be concerned about this update in the EEOC Compliance Manual? This is another opportunity to be in front of your clients and help guide them with their employment practices. Good business practices help attract and retain employees during these competitive times. Creating a culture free from employment discrimination can also create a motivated, stress free workforce leading to reduced benefit claims, reduced absenteeism, and turnover, which can allow for business growth.

What can your employers do now to ensure that their organization is proactively compliant with EEOC laws?

1) Make sure the Employee Handbook contains their EEOC policy statement and includes a process for an employee to file allegations of a complaint of workplace discrimination.

2) Train employees and supervisors on lawful and unlawful employment practices, including retaliatory behavior.

3) Take all complaints of discrimination seriously and ensure that a prompt and thorough investigation is conducted.

Employers should also make sure that their performance management process is documented and non-discriminately administered. If an employer needs to take corrective performance action — up to and including termination of employment — against any employee who has filed a complaint of discrimination, it is advised that they seek guidance from their Employment Law attorney before taking any action.

Lastly, discrimination in the workplace can be avoided by having a culture that promotes diversity, making employment decisions based upon performance, and maintains professionalism in all forms of communication.

See the original article Here.


Kloss, B. (2016 September 22). What you need to know about the EEOC's updated guidelines for retaliation. [Web blog post]. Retrieved from address:

What Employers Can Learn From Millennials

Great read by Christina Folz on generational communication.

It's a tale as old as time: Middle-aged and older adults kvetch about the next generation and speculate on what this world is coming to. Business author and consultant Jamie Notter recently shared a reference to young adults' lack of respect for elders and poor work ethic—from the ancient Roman philosopher Cicero.

"Every 20 years, a new generation comes into the work world as adults, and we all freak out about it," says Notter, who co-wrote the book When Millennials Take Over (Idea Press, 2015). As the largest living generation, Millennials (those younger than 35) have perhaps borne more than their fair share of scorn.

"We are really mad about how many trophies they got," says Notter, who is a member of Generation X and founding partner of WorkXO LLC. "We're constantly saying they don't get it, they don't know how to work in the real world." In truth, however, they likely understand more about the future of business than others, given that they are shaping it. "They have a lot to teach us," Notter maintains. "We need to shift conversation away from complaining and more toward being curious."

For their book, Notter and co-author Maddie Grant researched organizations that had alignment with the Millennial approach to business. These companies tend to be:

Digital. This is about more than technology. It's a philosophy based on the concept that software must work for the user—by being customizable and constantly updated. "We need to bring that mindset into leadership and business," Notter says. The American Society for Surgery of the Hand, a Chicago-based organization with about 20 employees, shaped its whole enterprise around the needs of employees rather than management—by letting people wear what they want to work, for example—and the organization has experienced off-the-charts engagement as a result.

Clear. "It's not just transparency for transparency's sake," Notter says. "It's about making things visible in order to improve the quality of decisions that get made." Menlo Innovations, a technology firm in Ann Arbor, Mich., pairs two software designers at a single workstation; one comments on the code as the other is writing it, and each pair's tasks are posted on a wall so they know what is expected at all times. "They charge more than competitors and still have people lining up," Notter says. "The product is that good."

Fluid. The hierarchy is still there, but everyone is actively engaged in the organization's mission. At Quality Living Inc. in Omaha, Neb., a rehabilitation facility for people with brain and spinal cord injuries, there is a standing rule: No matter where a person is on the organization's hierarchy, he or she must connect decision-making to the hopes and dreams of the patient. "For this to work, you need to be crystal clear on what defines success," Notter says.

Fast. All the organizations Notter and Grant studied were agile and quick—in part because employees are trusted to make choices themselves. At Menlo Innovations, for example, "decisions get made without e-mail and boring status update meetings," Notter says.

Instead, employees communicate and resolve issues using something Notter referred to as "high-speed voice technology."

In other words, they talk to each other.

Read the original article posted on on July 27, 2016 Here.


Folz, C. (2016, July 27). What employers can learn from millennials [Web log post]. Retrieved from

Healthcare strategies that can save employers money

Todd Rolland compares the traditional strategies to new stratigies for healthcare savings in the artilce below.

It is no secret that employee benefit costs are rising. As an employer, we wonder what can be done to reduce costs and as an employee, we are curious if we are getting the best deal. Medical insurance costs are rising faster than many companies’ profit margins and outpacing inflation on a year-to-year basis.

Rising healthcare costs are eroding revenue unlike any other element within a business. Government regulations and rising premiums are also affecting cash flow which can impact all areas of business operations. Separating rhetoric and marketing from meaningful, impactful company-wide solutions is becoming increasingly difficult. However, as the paradigm shift of healthcare strategies gains momentum, sustainable solutions are becoming clearer.

There are evolving options with this new paradigm shift of healthcare strategies: traditional, direct contracting, reference-based pricing and bundled pricing. A strong market push for pricing transparency has created additional opportunities for employers to save money and control costs, and they are doing just that. Employers now have the ability to function much like the traditional PPO has historically functioned by negotiating directly with providers.

The traditional approach includes elements such as reinsurance, administration, PPO networks, pharmacy benefit managers, population health management, predictive modeling, multiple plan designs and wellness strategies.

New options
Direct contracting is also a viable option because providers are much more willing to contract directly with employers than ever before. The idea is to establish a delivery and pricing contract that accomplishes two primary objectives:

  1. An agreed-upon fee schedule for services performed that is less than typical insurance company PPO-contracted rates.
  2. Incentive for participants to utilize contracted providers for the care needed.

The third option, reference-based pricing, allows employers to structure partial self-funding plans that reimburse a certain percentage of Medicare reimbursements levels for claims. PPO fee schedules can be 100-200% higher than these Medicare rates. As a result, the reimbursement plan can save employers a considerable amount. However, there is still a risk in balanced billing. The direct contracting option protects the employer with balanced billing issues that they would otherwise experience with reference-based pricing methodologies.

Bundled pricing is rapidly evolving and creates a significant opportunity for employers to save money. Employers simply pay agree-upon cash pricing for surgeries performed on an outpatient basis, and in certain cases, an inpatient basis. The price includes all services including facility, surgeon, anesthesiology, pathology, radiology, etc.

Additionally, two strategies that are gaining attention around prescription costs are average script pricing and pass-through average sales price prescription pricing. Both offer employers opportunities to find significant claims savings.

See the original article posted on EmployeeBenefitAdvisor on August 9, 2016 Here.


Rolland, T. (2016, August 9). Healthcare strategies that can save employers money [Web log post]. Retrieved from

Adopting a coaching mindset to help employees plan for retirement

Are your employees prepared for retirement? See how Cath McCabe gives tips and tricks on coaching your employee for retirement.

America may be becoming the land of the free and the home of the grey as more adults are living longer lives.

According to the Administration on Aging, the number of centenarians more than doubled between 1980 and 2013. But lifespans aren’t the only thing increasing – so are the expenses that many older Americans face.

Retiree health care costs have surged exponentially – the Employee Benefits Research Institute (EBRI) estimates that the average healthy 65-year-old man will need $124,000 to handle future medical expenses. For a healthy woman of the same age, the expected amount is $140,000.

Many of these extra years – or decades – will be spent in retirement, so it’s crucial that Americans plan to have the income they need not only to retire, but to last throughout a potentially long retirement.

Since many adults use employer-sponsored retirement plans as a source of retirement funding, plan sponsors are in a key position to act as retirement “coaches” by encouraging employees to plan ahead and help them plan for their financial security in retirement.

Engage employees early and often

We have found that employers are a trusted source of financial information for employees. Plan sponsors can leverage this trust to engage employees with a variety of programs and tools that help them understand their future retirement income needs.

A plan sponsor’s role as coach begins when employees begin their careers by providing financial education.  Education can help new employees recognize the importance of contributing to a retirement plan and the benefits of saving early, as well as help to optimize employee participation in retirement programs. Education designed for mid-career employees, and those nearing retirement, can cover more complex topics as they encounter life events that require a change to their road map for retirement.

And if employees can get started earlier in their careers, there is an increased likelihood that employees will have a positive retirement experience. A recent survey among current TIAA retirees found that those who began retirement planning before age 30 are more likely to retire before the age of 60, and 75 percent say they are very satisfied with their retirement.

Coach employees through education and advice to create a retirement road map

Many Americans need help in setting and achieving their retirement goals – a recent survey found that 29 percent of Americans are saving nothing at all for retirement. It’s important to develop a retirement coaching strategy that can help put participants in the right frame of mind and offers the resources they need to establish clear retirement goals and a road map for achieving those goals.

Many people think about their retirement savings in terms of accumulation – how much of a “nest egg” they’re able to build to fund their retirement. But employers should help their employees think about their retirement savings in terms of the amount of income they will have each month to cover their living expenses. Having a source of guaranteed lifetime income can help employees mitigate the risk of outliving their retirement savings.

As a rule of thumb, most employees will need between 70 percent and 100 percent of their pre-retirement income.  If employees find they are not on track to meet this ratio, plan sponsors can help identify the necessary actions to increase the chance of success. For example, employees may need to increase their savings rate. Plan sponsors can help by encouraging employees to save enough of their own dollars to get the full employer match. If employees already are saving enough to get the full match, they then should aim to increase their contributions each year until they are saving the maximum amount allowed.  Many employees older than 50 also can take advantage of catch-up provisions to save additional funds.

Perhaps the most important function of education is to drive employees to receive personalized advice from a licensed financial consultant supporting the employer’s retirement plan. This is where the road map is created, with the advisor providing turn-by-turn guidance. For most employees, an annual meeting can help keep them on track.

Why is it important to “coach” employees to create the road map? Simply put, it can improve both plan outcomes and the employees’ retirement outcomes.  Advice is proven to positively correlate with positive action – enrolling, saving or increasing saving or optimizing allocations. (See this Retirement Readiness research for more information). Individuals who have discussed retirement with an advisor are much more likely to “run the numbers” and calculate how much income they’ll need in retirement – 79 percent versus only 32 percent who have not met with an advisor.

Helping employees along the road to retirement is a win-win for employees and plan sponsors, even beyond the fiduciary requirements. A 2015 EBRI report found that 54 percent of employees who are extremely satisfied with their benefits, such as their retirement plan and health insurance, also are extremely satisfied with their current job. Similarly, a 2013-2014 Towers Watson study revealed that nearly half (45 percent) of American workers agree that their retirement plan is an important reason why they choose to stay with their current employer. Establishing strong connections between employees and their retirement plans may aid employers’ retention efforts.

Supporting employees on their retirement readiness journey

Once employees have a better sense of the actions they need to take, plan sponsors can provide additional support by highlighting the investment choices that may help employees achieve their desired level of income. Many employees may understand how to save, but they are far less familiar with how and when to withdraw and use their savings after they have stopped working. Offering access to lifetime income options, such as low-cost annuities, through the plan’s investment menu can help employees create a monthly retirement “paycheck” that they can’t outlive.

The peace of mind that these solutions offer can last a lifetime, too. A survey among TIAA retirees found that those who have incorporated lifetime income solutions into their retirement have been satisfied with that decision. Among the retirees with a fixed or variable annuity, 92 percent are satisfied with their decision to annuitize.

Employers also should set a benchmark for regularly evaluating employees’ progress toward their retirement goals. This will allow employees to monitor their retirement outlook and identify opportunities to adjust their savings strategy so they don’t veer off their retirement road map.

Remember the emotional aspect of retirement

In addition to the financial aspects of retirement planning, it’s important to factor in emotional considerations. Offering a mentoring program, one-on-one advice and guidance sessions, or workshops and seminars to guide people on how to navigate this major milestone could be helpful for new retirees.

For some employees, going from working full time to not working at all may be a too abrupt change. Employers may want to consider offering a phased approach to retirement that gives employees the opportunity to work part time or consult to help ease the transition. An alumni program that offers occasional reunions or other programming can help retirees still feel connected to their organization for many years after they stop working.

Employers are uniquely positioned to guide employees through the retirement planning process, from early in their careers to their last day in the office – and beyond. It’s not enough to simply get employees to retirement: Plan sponsors need to help them get through retirement as well. Establishing a coaching mindset can be an effective way to actively engage employees in retirement planning and help them see that the end of their working careers can be the beginning of a wonderful new stage of life.

See the Original Post from Here.


McCabe, C. (2016, August 04). Adopting a coaching mindset to help employees plan for retirement [Web log post]. Retrieved from

Form 5500 changes could increase obligations for plan sponsors

With proposed changes to Form 5500, small business may need to be prepared to stay in compliance as exemption statuses may change. See the article by Joseph K. Urwitz, Srarh Engle and Megan Mard from Employee Benefit Adviser.

Historically, Form 5500 has served primarily as an information return used by plan administrators and employers to satisfy their reporting obligations under the Employee Retirement Income Security Act and the Internal Revenue Code. However, the DOL and IRS are increasingly relying on information reported on Form 5500 as a key component of their compliance and enforcement initiatives.

As a result, the proposed revisions to Form 5500 would add a number of new reporting requirements designed to aid the DOL and IRS in assessing whether an employer-sponsored health and welfare plan is being operated and maintained in compliance with the Internal Revenue Code, ERISA and the Affordable Care Act. Most notably, the revisions would limit the reporting exemption for small health and welfare plans, and require employers to disclose significantly more information about their plans in a new Schedule J (Group Health Plan Information) to the Form 5500.

Proposed changes limit exemption for small health and welfare plan reporting

Under the existing reporting regulations, employer-sponsored group health plans with fewer than 100 participants that are fully-insured, self-insured or a combination of insured and self-insured, are not required to file a Form 5500. The proposed changes would eliminate this small plan exception and would require all employer-sponsored group health plans that are subject to ERISA (including grandfathered and retiree plans) to file a Form 5500, regardless of a plan’s size or funding.

The DOL’s executive summary on the proposed regulations states that this change will improve the DOL’s effective development and enforcement of health and welfare plan regulations, as well as the DOL’s ability to educate plan administrators regarding compliance. The new reporting rules will also provide the DOL with data needed for congressionally-mandated reports on group health plans. Under the proposed rules, the existing financial reporting exemptions for health and welfare plans on Schedule C (Service Provider Information), G (Financial Transaction Schedules) and H (Financial Information) will continue to apply. Small, fully-insured plans would have a new limited exemption and would only be required to complete basic participation, coverage, insurance company and benefit information.

Changes to form 5500-SF eligibility

Currently, a welfare plan with fewer than 100 participants, including a plan that provides group health benefits, may file the Form 5500-SF if it is not exempt from the reporting requirements and otherwise eligible. Under the proposed regulations, welfare plans that provide group health benefits and have fewer than 100 participants would no longer be permitted to use the Form 5500-SF. For example, under the proposed rules, a plan funded through a trust with fewer than 100 participants would be required to complete the Form 5500 and Schedule H and Schedule C, if applicable. Welfare plans that do not provide group health benefits, have fewer than 100 participants, and are not otherwise exempt from the reporting requirements would still be able to use the Form 5500-SF.

Proposed changes require disclosure of significantly more plan information

The proposed revisions would also add a new Schedule J (Group Health Plan Information) to the Form 5500. Schedule J would require group health plans to report detailed information about plan operations and compliance with both ERISA and the ACA. For example, plans would be required to disclose, among other things:

  • The number of participants and beneficiaries covered under the plan at the end of the plan year.
  • The number of individuals offered and receiving Consolidated Omnibus Budget Reconciliation Act (COBRA) coverage.
  • Whether the plan offers coverage for employees, spouses, children, and/or retirees.
  • The type of group health benefits offered under the plan, i.e., medical/surgical, pharmacy, prescription drug, mental health/substance use disorder, wellness program, preventive care, vision, dental, etc.
  • The nature of the plan’s funding and benefit arrangement, and information regarding participant and/or employer contributions.
  • Whether any benefit packages offered under the plan are claiming grandfathered status, and whether the plan includes a high deductible health plan, a health flexible spending account, or a health reimbursement arrangement.
  • Information regarding rebates, refunds or reimbursements from service providers.
  • Stop-loss coverage premiums, information on the attachment points of coverage, individual and/or aggregate claims limits.
  • Whether the plan’s summary plan description (SPD), summaries of material modifications (SMM) and summaries of benefits and coverage (SBC) comply with applicable content requirements.
  • Information regarding the plan’s compliance with applicable Federal laws, including, for example, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Genetic Information Nondiscrimination Act of 2008 (GINA), the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) and ACA.
  • Detailed claims payment data, including information regarding how many benefit claims were submitted, appealed, approved and denied during the plan year, as well as the total dollar amount of claims paid during the plan year.

The DOL has generally requested comments on the new proposed reporting requirements for group health plans and has specifically requested comments on several of the proposed disclosures listed above, including the costs and feasibility of collecting COBRA coverage information and the methodology and reasonableness of collecting information on denied claims.

Next steps

The proposed revisions to Form 5500 are complex and will likely be subject to a number of changes in response to comments received by the DOL. It is clear, however, that future Form 5500 reporting obligations will require more data, more resources and be subject to increased scrutiny by Federal agencies. Employer sponsors of group health plans should begin to evaluate plan documentation and the potential new disclosures required by Schedule J to ensure that each plan sponsor will be in a position to access such information and adequately communicate the new reporting requirements.

See the original Article Posted on here.


Urwitz, J.K., Engle, S., Mardy, M. (2016, August 04). Form 5500 changes could increase obligations for plan sponsors [Web log post]. Retrieved from