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HR Report - Articles
MMA HR Report | October 2010 | Issue 108
  1. Q & A from the MMA H.R. Help Line
    1. Time Clock Travails
    2. Adding Adult Children to Health Care Plans
    3. The Disability Made Me Do It
  2. $792 Million in Small Business Lending
  3. September Unemployment Rate Down to 13 Percent
  4. Seasonal Flu Information for Businesses
  5. Michigan Talent Bank Enhanced
  6. Staffing Employment Up 20 Percent
  7. MMA Seminar: How Independent Are Your Contractors?

1. Q & A from the MMA H.R. Help Line

A. Time Clock Travails

Q. Lately, we have had a growing number of employees not punch in at the start of the shift. We think it is because they are running late. What remedies does an employer have?

A: Several. The employer is legally obligated to accurately account for the daily number of hours worked by each employee. Many employers have a written policy requiring employees to use the time clock at the beginning and end of each shift and before and after lunch breaks. Failing to punch in is a violation and subjects the employee to discipline. You can also dock the pay of an employee who does not work scheduled hours. In those cases, you need active supervision to meet the necessary burden of proof. The employer is not allowed to dock pay based on a presumption that, because an employee failed to punch in, they were not at work on time. Other solid evidence will be required for each time the employee was late in order to support the docking of pay. Given the possible difficulty of establishing a case for docking, most employers adopt the policy requiring use of the time clock. Active enforcement can result in the desired behavior.

B. Adding Adult Children to Health Care Plans

Q. I understand the new Federal Health Care Plan provides coverage for adult children of employees. Who is qualified and does it matter if the child had previously been removed from coverage?

A: One of the features of the new Patient Protection and Affordable Care Act (PPACA) is the requirement that all group health care plans offer dependent child coverage to adult children of employees in the plan up to age 26. Coverage is provided with no strings attached. It does not matter if the child had been previously excluded from coverage, does not live with the employee, has a household and/or family of his/her own. The only qualifier is that coverage is provided to the child only, not to any spouse or child of that individual. Also, if the company plan is a “grandfathered plan” under the PPACA, coverage does not have to be provided to an adult child eligible for health care coverage from an employer. Adult children can enroll for a period of at least 30 days, beginning no later than the first day of the new plan year beginning on or after 9/23/10 with coverage retroactive to the first day of the plan year.

C. The Disability Made Me Do It

Q. One of our employees violated the established “company code of conduct.” During the due process meeting, he alleged his bad behavior was caused by a physical disability protected by law. Do we have to allow such behavior?

A: This incident contrasts the inherent right of a company to create and enforce rules and standards of conduct for its employees against an employee’s rights under the American with Disabilities Act to be free of discrimination on the basis of a disability. The decision as to which rights will win out will depend on a careful analysis of the particular facts of each case.

A recent federal case out of California is instructive as to how a court will weigh the competing interests. The case involved a supervisor who was charged with violating the employer’s code of conduct after an evening of excessive drinking and gross misconduct at a company party. The supervisor later claimed that his alcohol consumption and bad behavior were related to an underlying psychiatric condition and that some unknown person had “drugged him” with marijuana which added to the problems. The employer was not moved and terminated the employee. Suit followed.

The employer prevailed in that case because the employee failed to provide legitimate evidence that he had been drugged, that marijuana was capable of triggering symptoms of the disability and even that he had ever been diagnosed with any psychiatric disorder. It was noted that even if the employee could provide such evidence, the employer may still prevail because it clearly demonstrated it had a job-related reason for the adverse employment action (i.e., enforcement of a code of conduct) which justified the termination.

In such cases, the employer will have to “defend” its rules and show a legitimate business reason for the discipline or discharge of an individual for the violation of a particular rule. The employer will also have to gather as much medical evidence as is available prior to the adverse employment action in order to assess whether the employee can prove the disability “caused” or contributed to the offensive behavior.

Information is provided by the law firm of Clark Hill PLC. If you have additional questions, please e-mail the firm at MMA@clarkhill.com or call the toll free MMA H.R. Help Line at 800-676-9077. MMA is not responsible for information or assistance provided. Information provided in the MMA HR Report and in response to H.R. Help Line inquiries are for general informational purposes only and expressly does not create an attorney-client relationship in any way. Legal counsel should be contacted for specific advice before taking action on the information presented.

2. $792 Million in Small Business Lending

On 10/8/10, Governor Granholm and the U.S. Department of the Treasury announced the allocation of State Small Business Credit Initiative (SSBCI) funding for Michigan, which will support $792 million in new small business lending through innovative local programs that help entrepreneurs expand their businesses and create new jobs.

“Innovative local initiatives that support small business lending are under extraordinary pressure because of state budget difficulties,” said Treasury Secretary Tim Geithner. “These funds will provide vital support to successful state-level programs that help local entrepreneurs obtain the credit they need to put more Americans back to work.”

Under the SSBCI, states can build upon existing, successful state-level small business lending programs, including:

  • Collateral Support Programs for Small Manufacturers: Collateral support programs help viable businesses that are struggling to get credit because the value of the collateral they hold has fallen, often due to the decline in commercial real estate values.
  • Capital Access Programs (CAPs): CAPs, which are already up and running in over 20 states, are loan portfolio insurance programs in which states provide a matching contribution to bank loan loss reserves when lenders extend credit to qualified small businesses.
  • Loan Guarantee Programs: Under loan guarantee programs, states provide partial guarantees on certain small business loans to give lenders greater confidence to extend credit.

In addition to the State Small Business Credit Initiative, the Small Business Jobs Act includes a number of important provisions to support small business job creation. The Act includes eight new small business tax cuts that create a $30 billion Small Business Lending Fund to help small and community banks provide new loans to small businesses, extends and expands existing Small Business Administration loan programs and delivers other important benefits for small businesses.

For more information, read the press release on the White House website.

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3. September Unemployment Rate Down to 13 Percent

Michigan’s seasonally adjusted unemployment rate fell in September to 13 percent, according to the Michigan Department of Energy, Labor & Economic Growth (DELEG). Overall, unemployment declined slightly by 9,000 in September, while total employment nudged upward by 4,000. The majority of these job gains (approximately 3,000) came from the manufacturing sector.

From September 2009 to September 2010, payroll jobs in Michigan edged down slightly by 7,000 or 0.2 percent. Over this period, job reductions in government (-11,000), financial activities (-8,000) and construction (-6,000) nearly matched gains in professional and business services (+14,000), manufacturing (+8,000) and education and health services (+5,000).

For more information, access the official report on the DELEG website.

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4. Seasonal Flu Information for Businesses

The single best way to prevent seasonal flu is to get a yearly flu vaccine, but good health habits and antiviral medications are other measures that can also provide protection. As an employer, you should encourage good health habits during the flu season by urging employees to:

  • Avoid close contact with people who are sick
  • Stay home when they are sick
  • Cover their mouth and nose with a tissue when coughing or sneezing
  • Clean their hands
  • Avoid touching their eyes, nose or mouth
  • Get plenty of sleep, be physically active, manage their stress, drink plenty of fluids and eat nutritious food

To help businesses, employers and their employees learn about other strategies for preventing the flu, the Center for Disease Control (CDC) and Prevention has developed a toolkit, available from the CDC website [pdf file], as well as created workplace flyers, posters and other materials to post and distribute at their place of business.

For more information, see the Flu.Gov website.

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5. Michigan Talent Bank Enhanced

The Michigan Department of Energy, Labor & Economic Growth (DELEG) announced enhancements to the Michigan Talent Bank website on 10/14/10 that include resume and job search tools for job seekers and new features to help employers find qualified applicants. Job seekers and employers are encouraged to check out the new and improved Michigan Talent Bank website.

“The Michigan Talent Bank is becoming a go-to resource for employers, whether the employer is a small local business or a major international corporation,” said Andrew Levin, acting director of DELEG. “The award-winning website offers all of the resources of other national job-search websites without any cost to the employer or job seeker.”

Enhancements include:

  • Improved employment searches that more accurately match job titles for both employers and job seekers.
  • Job seekers creating resumes can upload data from a resume previously saved as a Word, PDF, text or HTML file.
  • Job seekers now have a choice of three different resume types: Chronological, Functional and Combination. Job seekers can switch between types at any time to tailor their resume instantly to various job openings.
  • Creating and updating resumes is now quicker and easier. The new multi-page format saves data more frequently.
  • New style options have been added such as creating bullet points within the work history description, skills, honors and notes fields, and offering job seekers more flexibility in presenting their qualifications.
  • Job seekers can e-mail their resumes as a PDF file, a popular request from employers. They can also conveniently save those PDF resumes to a storage device or in their e-mail for future use.

Future improvements will enhance job matching even further through the use of new employment availability selections (such as full- or part-time) and position type selections (such as seasonal or temporary).

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6. Staffing Employment Up 20 Percent

The American Staffing Association (ASA) announced 10/26/10 that staffing employment in October is 20 percent higher than in the same month last year. The index for October is 100, up four points from 96 for September, suggesting that staffing employment has increased about 4 percent over the past month.

The ASA Staffing Index is reported nine days after each workweek, making it a virtual real-time measure of staffing employment trends. ASA research shows that staffing employment is a coincident economic indicator and leading employment indicator, especially when the economy is emerging from a recession. Data for the index are gathered by ASA research partner, Inavero, a market research firm based in Portland, OR.

To view weekly index data, visit the ASA website.

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7. MMA Seminar: How Independent Are Your Contractors?

Join the MMA on 11/11/10 for a seminar in Lansing to learn about your legal liability when hiring independent contractors. During this economy, many employers hire “independent contractors” instead of employees to maintain payroll flexibility. With the U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) placing more emphasis on enforcement, employers shouldn’t miss this opportunity to learn about the new IRS tests for independent contractors.

The seminar, How Independent Are Your Contractors?, will take place from 10:00 a.m. to 11:30 a.m. The program is free for MMA members and $25 for non-members. Pre-registration is required, so be sure to register early as space is limited.

For more information or to register for this program or other MMA events or seminars, see the MMA Seminar Schedule or contact LeAnn Hicks at 517-487-8557 or 800-253-9039 (press 9, then ext. 557).

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