| Volume 18 | Issue 9 |
Source for Employer Empowerment |
September 2010 |
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Separation of Employment
Sooner or later all employees will reach the end of their current employment. For many employees affected by the economic recession, job loss has happened sooner than expected and has reached levels not seen in decades. Recent statistics from the Society for Human Resource Management (SHRM) show that private sector employers in the United States lost 7.2 million jobs between January 2008 and September 2009. What’s even more concerning is the record number of termination-related claims received by the Equal Employment Opportunity Commission (EEOC) during roughly the same period. During 2008, the EEOC saw 95,402 claims filed and 2009 brought an additional 93,277 claims. While data is not yet available for 2010, the trend is expected to continue. It is therefore more important than ever to make sure that you handle employment separations appropriately to minimize your risk of a wrongful termination claim from a former employee. No matter the reason for separation, all separations of employment will either be voluntary or involuntary and that will determine what steps you should take and how it should be handled.
Voluntary
A voluntary separation of employment is triggered when the employee initiates the separation. A voluntary separation should always prompt you to request a letter of resignation from the employee. A letter of resignation does not have to be lengthy or formal. It can be as simple as a note from the employee stating that he or she is leaving and when their last day will be. A letter of resignation may seem like an inconsequential step, but it is important protection for you in case the employee brings future claims or legal action against you regarding their employment.
Some typical reasons given for a voluntary separation are:
- A new job
- Moving or relocation
- Returning to school
- Personal reasons
- Dissatisfaction with the job
Another type of voluntary separation is job abandonment. This occurs when the employee ends his or her employment through failing to contact you and show up to work for at least three consecutive shifts. It is important to note that job abandonment must include both these elements. If an employee fails to show up for work, but still calls in with a reason for being absent, it should not be counted as job abandonment.
In some instances a voluntary separation may come as surprise to an employer and sometimes it won’t. For that reason, a voluntary separation of employment creates an excellent opportunity to evaluate the duties and responsibilities of the position being vacated to determine what is working and what is not. Some employers find an exit interview to be helpful in determining what could be done differently. RMI can assist you with conducting an exit interview and also provides an exit interview form on our website.
Involuntary
Involuntary separation of employment occurs when the employer initiates the separation. A number of factors can prompt this ranging from neglect of duties, to gross misconduct, to economic factors beyond the employee’s control. For this reason, involuntary separations are usually split into two categories: terminations for cause and layoffs.
Terminations for Cause
Terminations for cause happen when the employee’s actions cause the employer to end the employment relationship. This type of separation should always occur in conjunction with a final incident. A final incident can be thought of as the last straw or the one thing causes you to say, “We’re done, that was your last chance.” It may be something as simple as unacceptable attendance or a violation of company policy. Maybe is it something more serious such falsifying records, fighting at work, or theft of company property. In many cases, a final incident will follow previous warnings for similar behavior. No matter the reason, a final incident should be specific and documented. Good documentation is the key to protecting your company from employee-initiated claims.
When a separation happens due to a final incident, it should occur as soon as possible following the final incident. If too much time is allowed to pass between the final incident and separation, the final incident will be considered as not serious enough to have merited the separation of employment.
Layoffs
A layoff is another kind of involuntary separation of employment. A layoff will occur when the separation is due to something beyond the employee’s control such as financial difficulties in the company, restructuring, downsizing, a reduction in force, or a plant closure. Employees chosen for a layoff should be selected through specific, documented criteria to avoid any allegations of discrimination in the selection process. The selection method used will vary for different companies and situations, but typical methods include choosing the last employee hired, choosing part-time employees, choosing the lowest rated employee in a certain skill-set, or choosing each employee in a certain group or department.
Other Considerations
For all types of separation of employment, certain things need to be considered prior to the last day of work. Your RMI HR Representative is available to assist you with most termination-related issues, including the following:
- When is the employee owed his or her final paycheck? This will vary from state to state, but a final check is usually owed at the time of termination for involuntary terminations, and by the next payday for voluntary terminations.
- Is the employee owed pay for any vacation time or sick leave? In some cases this will be determined by company policy, in other cases state law specifies what should be paid.
- Will the employee be given severance pay? If so, it is a good idea to have the employee sign a severance agreement prior to collecting the money. Please contact your RMI HR Representative for assistance with a severance agreement.
- Does the employee have any company property that needs to be returned prior to the last day of work?
- Are there any notice requirements? Many companies ask for a two-week notice for voluntary separations, and some layoff situations require advanced notice to affected employees.
Being involved in a separation of employment can be stressful and many times intimidating, however, through appropriate preparation and proper handling of the situation, you can greatly reduce your risk of dealing with the consequences of a future claim. For assistance with any aspect of the termination process, please contact your RMI HR Representative. |
| RMI's New Employees |
RMI is pleased to announce that Scott Layton has been hired as an HR Specialist at RMI’s Corporate Office. Scott has worked in various HR positions in the Salt Lake City area in industries varying from health and life insurance, finance, medical, and banking. Specifically, Scott has worked for a local credit union, Deseret Mutual Benefit Administrators, Intermountain Healthcare, as well as some ad hoc consulting for a medical service company. Scott graduated from the University of Phoenix with a Bachelor’s degree in Business Management, with emphasis in Human Resources Management. Scott is excited for this new challenge and looks forward to meeting and working with all of RMI’s clients.
RMI is also pleased to announce that Fatima Noriega was recently hired as an HR Generalist in RMI's Seattle Office. Fatima graduated from Seattle University with a Bachelor’s degree in Psychology with a Business Administration minor. She grew up in Peru and spent some time in Puerto Rico before moving to Seattle. As such, Fatima is a fluent in Spanish. Prior to RMI, Fatima was the HR Assistant at a security system company that provided services for GGP Malls, Albertsons, and CVS pharmacies across the United States. She is looking forward to this challenge and is excited to be part of the RMI family. |
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| Year-End Health Contribution Payrolls for S-Corp Shareholders |
If you are an S-Corp shareholder of 2% or more, and your company paid for all or some of your health premiums in 2010, these premiums will be shown as federal taxable wages on your 2010 Form W-2. These wages will not be subject to Social Security or Medicare (FICA) or Unemployment (FUTA) taxes. These wages will be included in Box 1 (Wages) of the Form W-2.
If your company is an S-Corporation in RMI’s system, RMI will be contacting you prior to the end of the year to confirm our list of 2%+ shareholders has not changed. Once the list of shareholders is confirmed, we will process an “Owner Health Contribution Payroll” to convert all 2010 employer paid health premiums to Box 1 of the Form W-2. This “Owner Health Contribution Payroll” will generate payroll reports detailing what we’ve done and these will be sent to your company.
If you have any questions, please contact RMI’s Payroll Director, Megan Smith, at 888-764-0200 or megan@rminc.com. |
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| Health Care Reform - What Does It All Mean? |
As RMI concludes another open enrollment for our self-funded health plan, many employers and employees are left wondering why their medical premiums went up this year by a larger percentage than in years past. Wasn’t health care reform supposed to save everyone money?
The legislation that was passed last March included over 2,700 pages, and this was just the framework for health care reform. Right now, there are more questions than answers and the various agencies are struggling to provide further guidance. The implementation process is just beginning and RMI’s Plan happens to renew on October 1st, just seven days after the fist wave of changes must be implemented. RMI’s Health Plan is one of the first plans to have to implement these changes.
As you know, the items contained in the first wave of health care reform will be implemented on October 1st. The actuary firm that reviews RMI’s Plan annually recommended an additional 5% increase to our premiums this plan year to cover the costs of healthcare reform. This was just an estimate on their part, as there is no data that will tell us what the actual financial cost will be. These changes include: eliminating cost-sharing for preventative services, no life-time cap on benefits, covering all dependents until age 26 and imposing the same cost-sharing structure on non-network emergency room visits.
While these changes are certainly good for our employees, they are also reforms that will most definitely increase your medical premiums. For example, even though RMI has never had an individual reach our Plan’s current $5 million life-time maximum, RMI’s reinsurance carrier (the insurer that pays claims from the RMI Plan that exceed $180,000) is now faced with an unlimited liability and increased our premiums by more than 30% this year. Insurance carriers are not going to absorb the added costs that will be incurred by the changes in health care reform, so they will have no choice but to pass these costs on to consumers.
A recent article published in the PEO Insider magazine states that the changes which are “consumer-friendly” are being implemented first and then later will come the “painful” mandates and penalties. Next year, for example, employees will no longer be able to utilize the Flexible Spending Account (FSA) for many of their over-the-counter items. In 2013, employees will be limited to a maximum of $2,500 in FSA healthcare expenses (RMI’s Plan currently allows for a maximum of $5,000 for healthcare expenses).
Coming in Phase Two of the reform are items such as penalties for employers who impose a new-hire waiting period before paying for an employee’s medical coverage and an increase in the Medicare tax for certain individuals. What’s strange is that it is not until 2015 that the government will begin looking at ways to cut costs related to Medicaid and Medicare. One thing is for certain: it will be interesting to see where this new direction in health care will take us over the next eight years. For additional information on this, please contact RMI’s Benefits Department. |
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| Timely Reporting of Employee Injuries |
If an employee is injured, please complete an Employee Injury Report and submit it to RMI within twenty-four hours of the occurrence. Delays in reporting injuries can result in problems in filing a worker’s compensation claim, increased costs on the claim, and possible delays in recovery. Please always submit an Employee Injury Report even if the employee does not initially seek medical treatment: having a report on file is important if they need to seek treatment at a later time. Be sure to indicate if the employee has missed any time from work as a result of their injury.
You may download the form from our website and send the completed Employee Injury Report to your HR Representative at your area RMI office. |
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| Personal Use of Company Vehicles |
One effective strategy in making your transportation safety program more effective and limiting risk exposure from vehicle crashes is to develop and implement a policy regarding employees’ personal use of company vehicles. Many companies find this to be a delicate subject since employees whose job responsibilities warrant the assignment of a company vehicle can come to view the company vehicle as a benefit. Some employees may even come to believe that the company vehicle is an entitlement or a “perk” and take advantage of it.
A company policy on the personal use of company vehicles can effectively manage this issue from both the company’s viewpoint and the employee driver viewpoint while helping to preserve company assets through effective risk management. Over the past several years, many companies have taken the position that company vehicles are limited to strictly business use and no personal use. Yet other companies will extend personal use to not only the employee, but also the spouse. Some companies will even allow children of the employee who have reached a certain age to operate the company vehicle for personal use.
An effective “Personal Use of Company Vehicle” policy should be documented and a company “Vehicle Use” agreement should outline both business use and personal use policies and procedures. A typical use agreement covering company vehicles should include guidelines similar to the following:
- The employee assigned the vehicle should be properly licensed to operate the vehicle and should have been qualified according to company standards.
- The Motor Vehicle Record (MVR) of the assigned employee should have been obtained and reviewed against company MVR standards prior to vehicle assignment. Additionally, the MVR should be reviewed on at least an annual basis to verify that the employee driver still meets company MVR standards.
- The vehicle will be maintained according to company policies and the manufacturer’s recommended maintenance schedule.
- If personal use is extended to spouses and/or children, consideration should be given to running each individual’s MVR initially and on an annual basis.
- Policies should specify the use of seat belts by all persons riding in the vehicle, no texting while driving, and no programming of GPS devices or music/video devices.
- Use of cell phones while driving should be prohibited unless an emergency situation exists. It is preferable that cell phone calls are made while stopped in a safe location. If a cell phone call is placed, the driver should notify the other party that he or she may have to end the call at any point to deal with traffic. The call should also be kept as short as possible. Recent research shows there is no difference in crash rate involvement between drivers who hold the phone and drivers who utilize hands-free devices to make and receive calls while driving.
- The personal use policy should also include a statement that personal use does not extend to parents, in-laws, brothers and sisters, or any other persons.
- No hitchhikers are allowed at any time.
- Any crash, no matter how minor, should be reported per company policy. It is the responsibility of the employee driver to verify that any additional authorized drivers understand and comply with this policy.
- Larger company trucks (bigger than a pickup truck or SUV) should not be allowed to be utilized for any personal use.
- The vehicle will be operated in compliance with all federal, state, and local laws and regulations at all times.
- Employees should understand that a condition of remaining in a company vehicle is that the company reserves the right to limit or revoke the driving privilege of any driver, spouse or child (of driving age) at any time.
By establishing effective written guidelines and communicating the guidelines via a company vehicle use agreement, your company can help to limit exposure from personal use of company vehicles. For assistance in drafting such an agreement, or for additional information, please contact your RMI HR Representative. |
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| Emergency Planning: Be Prepared |
Do you have a plan in place to determine how your organization will respond in an emergency? Emergencies can happen suddenly, disrupt the routine of an organization, and place personnel and property at risk. Organizations must prepare for any potential emergency from any source, including the following:
Natural Hazards
- Floods
- Hurricanes
- Tornadoes/Severe Storms
- Winter Storms
- Earthquakes
- Landslides
- Fire
Technological Hazards
- Hazardous Materials Incidents
- Nuclear Power Plants
Terrorism
- Kidnapping
- Biological Threats
- Chemical Threats
- Bomb Threats
Unless an organization is able to quickly identify the hazard, respond and react to the hazard, and recover, the organization could suffer catastrophic losses from the event. Establishing an emergency response plan can help mitigate the effects of an emergency on your operations, employees, and community. Some of the benefits and/or goals of your emergency management plan should include:
- Protecting employees, the community, and the environment
- Meeting requirements of federal, state, and local agencies
- Mitigating financial loss
- Continuity of operations
- Reducing exposure to civil and criminal liability
- Enhancing image and credibility with employees, customers, suppliers, and the community
The Four Step Development Process
The Federal Emergency Management Agency (FEMA) has developed a four-step continuous process for developing a plan:
- Establish a Planning Team – Include members from several departments in your organization to provide diverse representation.
- Analyze Capabilities and Hazards – Determine what hazards could affect your organization and what procedures you have in place to respond. Identify those business processes that need to remain operational.
- Create the Plan – Prepare policies and procedures to spell out how employees will respond and how the organization will recover.
- Implement the Plan – Communicate the published plan to all employees, conduct training drills and exercises at least annually, evaluate the plan on a scheduled basis, and update it.
As stated above, once the plan is implemented, it must be continually tested and updated as operations change and new hazards arise. Formal audits of the plan should be completed at least annually. For assistance in developing an emergency plan or more information on this topic, please contact your RMI HR Representative. |
| To access the online Workplace Safety Training Log click here. |
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Copyright © 2010 Resource Management, Inc. All rights reserved.
Client & Employee Newsletter, Source for Empowerment is published monthly by Resource Management, Inc. Client & Employee Newsletter features issues of importance to our clients and their employees. It is intended to provide general information and should not be construed as legal advice. We welcome your comments, questions, and concerns. |
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Toll Free: (888) 764-0200 | 510 South 200 West, Salt Lake City, UT 84101
www.rminc.com |
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