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Friday, January 27, 2012

Health Cost Reporting for 2012

By: Tommy Eden, Attorney

As the battle lines on ObamaCare are set with oral arguments before the United States Supreme Court on March 26, 27 & 28, 2012, now is the time for employers to begin identifying the health benefits that will be subject to a new W-2 reporting requirement effective January, 2013. After the Supreme Court’s dueling smoke clears, employers will be able to better understand their compliance obligations. These are just a small sampling of the new compliance obligations kicking in for employers:

Aggregate Benefit Cost Reporting. Under a provision of the Patient Protection and Affordable Care Act (PPACA), many employers will soon be required to report on Form W-2 the costs of providing benefits such as major medical coverage and integrated vision plan coverage. While certain benefits can be excluded, the reported amount should reflect the aggregate cost of all reportable benefits the employee received under all the group health plans they participated in during all or part of the 2012 plan year.

Grandfathered Group Health Plans. Watch that you do not make plan changes that may take you out of grandfathered status, which can cost an employer dearly. Insured and self-funded/self-insured group health plans that existed before March 23, 2010, the day that PPACA became law, are grandfathered plans. Plans that existed before March 23, 2010, lose their status as grandfathered plans if employers or health insurance issuers made changes or revisions to group health plans on or after March 23, 2010. This includes:

• change from insured plans to self-funded/self-insured plans or from self-funded/self-insured plans to insured plans;
• eliminate all or substantially all plan benefits to diagnose or treat particular health conditions;
• increase coinsurance levels;
• increase cost-sharing requirements, deductibles, out-of-pocket limits, or co-pays above certain thresholds;
• decrease employer contributions toward plan coverage costs by more than 5% below employer contributions that were in effect on March 23, 2010; or
• impose new annual or lifetime limits on the dollar value of plan benefits.

Culturally and Linguistically Appropriate Notices. Employers and health insurance issuers must provide notice of benefit determination, notice of adverse benefit determination and notice of final internal adverse benefit determination to plan participants in English and, in certain situations, must include a one-sentence statement in a non-English language offering to provide notices in the non-English language.

Common Sense Counsel: With employers’ penalties for failure to offer minimum essential coverage of $2,000, W-2 cost reporting, grandfathered plans at risk, linguistically appropriate notices and a multitude of new compliance regulations coming down monthly, you need to locate now a trusted advisor to guide you through the murky compliance waters of PPACA.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C., a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540.

Friday, January 20, 2012

Pepsi to Pay Applicants $3.13 Million for Background Checks

By Tommy Eden, Attorney

Pepsi’s background checking policy denied employment to applicants who had been arrested or convicted of certain minor offenses. An investigation conducted by the EEOC revealed that more than 300 African Americans in the Minneapolis area were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment.

Pepsi’s policy excluded from consideration job applicants who had been arrested pending prosecution, even when they had never been convicted of any offense.

The EEOC found reasonable cause to believe that the criminal background check policy used by Pepsi discriminated against African Americans in violation of Title VII of the Civil Rights Act of 1964.

Pepsi has voluntarily agreed with the EEOC to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination. The use of arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964, when it is not relevant for the job, because it can limit the employment opportunities of applicants or workers based on their race or ethnicity.

As part of the EEOC settlement, Pepsi: 1) adopted a new criminal background check policy; 2) agreed to offer employment opportunities to victims of the former criminal background check policy who still want jobs at Pepsi and are qualified for the jobs for which they apply; 3) will supply the EEOC with regular reports on its hiring practices under its new criminal background check policy; and 4) will conduct Title VII training for its hiring personnel and all of its managers.

Common Sense Counsel: The EEOC has published policy guidance regarding the use of arrest and conviction records in employment. The EEOC is a member of the federal interagency Reentry Council, a Cabinet-level interagency group convened to examine all aspects of reentry of individuals with criminal records, so this is a real hot button issue.

When employers contemplate instituting a background check policy, they should consider the following: 1) the nature and gravity of the offense; 2) the time that has passed since the conviction and/or completion of the sentence; and 3) the nature of the job sought in order to be sure that the exclusion is important for the particular position and not an unwarranted roadblock to employment. Employers with unnecessarily broad criminal background check policies should take note of this EEOC enforcement and reassess their policies to ensure compliance with Title VII. A well drafted job description is critical to showing that a background check is relevant and not an unwarranted roadblock.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540. Live EEOC links can be found at

Friday, January 13, 2012

OFCCP Proposes 7% Disabled Goal for Federal Contractors

By: Tommy Eden, Attorney
Opelika Auburn News 1-16-12

The U.S. Department of Labor has proposed a new rule that would require federal contractors and subcontractors to set a hiring goal of having 7 percent of their workforces be people with disabilities. The DOL Office of Federal Contract Compliance Programs (OFCCP) invites public comment on this proposal by February 7, 2012.

The proposed regulatory changes detail specific actions contractors must take in the areas of recruitment, training, record-keeping and policy dissemination—similar to those that have long been required to promote workplace equality for women and minorities. In addition, the rule would clarify OFCCP’s expectations for contractors by providing specific guidance on how to comply with the law as follows:

Highlights of the proposed rule include:Goals: Federal contractors and subcontractors would be required to set a hiring goal of having 7 percent of their employees be workers with disabilities in each job group of the contractors’ workforce.
Data Collection: Collection of data on employment of people with disabilities by requiring that contractors invite all applicants to voluntarily self-identify as an “individual with a disability” at the pre-offer stage of the hiring process. Contractors also will be required to invite post-offer voluntary self-identification and to survey all employees annually in order to invite their self-identification in an anonymous manner.
Record-Keeping: Require that contractors maintain records on the number of individuals with disabilities applying for positions and the number of individuals with disabilities hired.
Accommodation Requests: Require, for the first time, that contractors develop and implement written procedures for processing requests for reasonable accommodation.
Outreach: Require that contractors engage in a minimum of three specific types of outreach and recruitment efforts to recruit individuals with disabilities.
Job Listings: Require that contractors list job openings with One-Stop Career Centers or other appropriate employment delivery systems.
Annual Reviews: Require previously recommended steps contractors must take to review their personnel processes, as well as their physical and mental job qualifications.
ADAAA Updates: Incorporate updates made necessary by the ADA Amendments Act (ADAAA) of 2008.

Common Sense Counsel Immediate Action Step for Covered Employers (Live links at

View the OFCCP Webinar
Read the Proposed Rule in Text Formats
Comment on the Rule - Open for Comment December 9, 2011 to February 7,
Print the Fact Sheet
Get answers to Frequently Asked Questions
• Stop trying to guess who is a 7 percenter in your workplace as that exercise will most likely get you a “perceived as” ADA Charge.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, PC and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540.

Tuesday, January 10, 2012

OHSA Top 10 Most Frequently Cited Standards for Fiscal 2011 (Oct. 1, 2010 to Sept. 30, 2011)

The following is a list of the top 10 most frequently cited standards following inspections of worksites by federal OSHA. OSHA publishes this list to alert employers about these commonly cited standards so they can take steps to find and fix recognized hazards addressed in these and other standards before OSHA shows up. Far too many preventable injuries and illnesses occur in the workplace.
1. 1926.451 – Scaffolding
2. 1926.501 – Fall Protection
3. 1910.1200 – Hazard Communication
4. 1910.134 – Respiratory Protection
5. 1910.147 – Lockout/Tagout
6. 1910.305 – Electrical, Wiring Methods
7. 1910.178 – Powered Industrial Trucks
8. 1926.1053 – Ladders
9. 1910.303 – Electrical, General Requirements
10. 1910.212 – Machine Guarding

Resources for Most Frequently CitedStandards
Common Sense Counsel: It is advised that you have a comprehensive safety audit conducted ASAP. The next time OSHA “comes to help you” the cost of being in the wrong just went up.

Tommy Eden is a resident of Auburn, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540.

Friday, January 6, 2012

Wal-Mart Employee Fired After Cancer Surgery

Tommy Eden, Attorney

Wal-Mart Stores Inc. will pay $275,000 to settle a disability lawsuit in Federal District Court in Tennessee. The lawsuit claimed charged that Wal-Mart denied a 12-year employee of its East Tennessee distribution center #6039 in Midway, Tenn., a reasonable accommodation after he had cancer surgery, which left him with weakness in his right shoulder.

The suit also claimed that Wal-Mart fired him in retaliation for complaining about its refusal to accommodate him. The employee had successfully worked as a forklift driver after the surgery. He requested that Wal-Mart not require him to cover a 20-minute break in the shipping department because it would require manual lifting. Wal-Mart denied his request for an accommodation and instead discharged him, claiming he could not perform the essential functions of his job.

Denial of a reasonable accommodation and retaliation against disabled individuals violates Title I of the Americans With Disabilities Act (ADA) as amended by the Americans With Disabilities Amendments Act of 2008 (ADAAA). Suit was filled by the EEOC on behalf of the employee after first attempting to reach a pre-litigation settlement through its conciliation process. This case was among the EEOC’s first lawsuits filed under the ADAAA.

In addition to the monetary relief, the 18-month consent decree settling the suit enjoins Wal-Mart’s distribution center #6039 from further failing to provide reasonable accommodation, absent undue hardship, or following proper procedures for handling such requests per the ADA and ADAAA. In addition, the decree requires that Wal-Mart provide anti-disability discrimination training to its management staff; maintain records of any accommodation requests and furnish them to the EEOC; and post a notice to employees about the lawsuit that includes the EEOC’s contact information. Wal-Mart has revised and amended its accommodation policy, which it distributed to all employees, to address accommodation issues.

Common Sense Counsel: There is a solid body of federal regulations, law and case authority that clearly obligates employers to provide an employee with a reasonable accommodation unless it poses an undue hardship. The EEOC is committed to vigorously enforcing the ADA and the ADAAA even against the largest retailer in the world. Over the past year the EEOC has filed more than 60 cases nationwide challenging disability discrimination. Employers must make decisions based on their employee's abilities, and not on their disabilities, or in this case a perceived disability. The interactive process uncovers potential accommodations, and good-faith participation in the process can strengthen an employer’s position against an ADA claim. It will always be the EEOC’s position that employers are obligated to engage in an interactive process with employees and provide reasonable accommodations for their disabilities.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540 or