HRFocus HR CORNER HUMAN CAPITAL PRACTICE

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1 HUMAN CAPITAL PRACTICE HRFocus November HR CORNER WAVE OF CLASS ACTIONS FOR COMMON BACKGROUND CHECK PRACTICES BY MARINA A. GALATRO, PHR-CA SR. HUMAN RESOURCES CONSULTANT Performing background checks is a recommended practice and can give you peace of mind knowing who you hire is who he or she claims to be. Background checks can help identify and screen out those candidates who have given inaccurate information on employment applications, or who might present a risk of violence or theft in the workplace. California employers are under attack for violations in background check procedures used by many employers. Numerous class action lawsuits have alleged violations of the federal Fair Credit Reporting Act (FCRA), California s Consumer Credit Reporting Agencies Act and the Investigative Consumer Reporting Agencies Act. A consumer report is the key component of a background check, which most employers routinely perform. Federal and California laws require employers to provide a clear and conspicuous written disclosure before obtaining a consumer report, and the disclosure (including a written authorization by the applicant) must be in a stand-alone document. In the event the results of the background check lead to an adverse action (e.g., not hiring or withdrawing an offer), additional disclosures are required. Violation of these federal and California laws could cost $100 $1,000 per violation and give rise to potential claims for punitive damages, civil penalties, and reasonable costs and attorneys fees. Ban the Box laws, aka Fair Chance Laws, are laws that prohibit companies from inquiring about applicants criminal histories on job applications. In the past several years, a handful of states (California, Colorado, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, New Mexico, New York, Pennsylvania and Wisconsin) have passed legislation featuring Ban the Box with varying definitions. A number of municipalities have also passed legislation. Ban the Box laws do not preclude employers from ever inquiring about an applicant s criminal history but do postpone the inquiry until later in the hiring process. The rationale for doing this is to promote hiring based on qualifications, not criminal histories. The law does not require employers to hire people with criminal records. HR CORNER Wave of Class Actions for Common Background Check Practices 1 Attracting and Signing The Best Candidates Starts with The Right Compensation Program 2 HEALTH OUTCOMES Promoting Tobacco Cessation: The Great American Smokeout 4 LEGAL AND COMPLIANCE Agencies Release Final Rules on Excepted Benefits 5 IRS Releases PCORI Fee Adjustments 7 Time Again To Impute Income on Group Term Life Insurance 7 WEBCASTS 9 CONTACTS 10 Continued on page 2 1

2 HR Corner continued from page 1 Practical advice. Employers can legally obtain much information about applicants for employment. In addition to deciding what information to gather, employers must be concerned with how to request and use such information when making employment decisions. Following are suggestions for employers interested in conducting background checks: Establish a written policy on background checks. Review procedures, policy and forms to ensure they comply with FCRA and applicable state laws. Do not conduct background checks on a selective basis treat all applicants the same. Maintain the confidentiality of all background check information. Check your employment application forms if applicable, do they reflect the Ban the Box law? Ensure your background check vendor is compliant. Is there a compliant Authorization Form? Is it a stand-alone document? No Waiver of Rights Language State required notices Ex: Checkbox for CA, MN and OK provided along with Disclosure/Authorization Adverse Action Process Additional guidance and resources on background checks are available on the EEOC website. Click here for a Best Practices Employer Guide pamphlet from NELP. ATTRACTING AND SIGNING THE BEST CANDIDATES STARTS WITH THE RIGHT COMPENSATION PROGRAM THIS ARTICLE PROVIDED BY BLR Companies endeavor to hire the right candidates, with the right skills, right qualifications and right cultural fit, for their organizations. Finding the right candidates is critical. Recruitment is costly. Turnover is even more costly (typically two times the annual salary and benefits of a role). Hiring the wrong candidate lowers morale and decreases productivity. To source the right candidates the first time companies focus on developing robust recruitment and interviewing processes. However, this does not increase a company s chances of attracting (and signing) the right candidates. A solid compensation program is critical to success. Why? The right compensation programs ensure the company s expectations and the candidate s expectations match. Attracting and signing the right candidates starts with employing the right compensation programs and processes. Companies need comprehensive compensation programs in place before trying to attract and sign applicants. Why? The main reason a good hiring strategy isn t enough is because it doesn t guarantee consensus. Many times, companies aren t able to hire and sign the right candidates because the company can t agree on the right person, the right salary, or the right package to offer. As a result, different candidates have different expectations ( job duties or compensation) of the same job. If the company isn t on the same page, how is the applicant supposed to be on the same page? As a seasoned compensation consultant who partners with all types of companies at all stages of growth, I have helped develop and implement compensation programs that streamline the hiring process by involving key stakeholders to create programs that support the company s business. In essence, I help create consensus. Compensation programs get the company and candidates on the same page. Hiring managers want to select the one right candidate from multiple qualified applicants. This means weeding out the wrong candidates before they even enter the arena. A great compensation program helps them do just that. Once the company knows exactly who it is looking for and how it will pay that person, it is much easier to find and attract that proverbial needle in the haystack. It all begins with the right foundation. The right foundation for a comprehensive compensation program is based on: Well-written job descriptions, Clearly articulated mission, Vision and values, A management (or board) approved compensation philosophy, and An offer that reflects sound compensation practices. Continued on page 3 2

3 HR Corner continued from page 2 1. Develop robust, targeted job descriptions Before the phone screening begins, companies want the right people at the other end of the line. Potential candidates research jobs online, by reading the job postings. However, many job postings are vague, do not adequately convey the job s main responsibilities and leave lots of room for interpretation. As a result, the wrong candidates submit résumés. There is so much variation among resumes that are submitted that companies are confused they aren t sure if the person is a good fit or not overqualified or underqualified. I help companies review and rewrite their job descriptions. There shouldn t be any room for interpretation. A comprehensive job description should clearly describe the main duties and responsibilities, those that cover 80 percent of the individual s time. There will always be additional duties, but those one-off s should not be in the job description. Companies risk losing the reader and have potential applicants focus on the wrong items. To write a focused job description, involve employees. Have the job description reviewed by people s managers. Finally, HR should closely review job descriptions across departments, levels, and roles for consistency. 2. Help determine a strong cultural fit Cultural fit is also important to finding the right candidates. Candidates not only research jobs, they research the company to determine whether or not they want to work there. This provides an important opportunity for ensuring cultural fit. Candidates don t just accept an offer based on the compensation. They accept an offer because they think they can be successful at that company. Therefore, companies should clearly develop and articulate the company s mission, vision, and values and post them online. Ensure the company s cultural can be clearly conveyed to anyone reading the company s website. Writing clear mission, vision and values statements should involve board members, senior management, management from multiple departments, and other employees. As a consultant, I facilitate focus groups to help people achieve consensus regarding not only the current culture, but the desired culture as well, and then help describe this desired culture in a mission, vision, and values statement. The process proves critical to building consensus and promoting engagement. Most importantly, when interviewing candidates, all the interviewers start from the same point the candidates receive clear messages about the company s culture. 3. Design an offer letter based on sound compensation practices First and foremost, an offer letter establishes consistent expectations regarding the value proposition: what an employee will deliver in exchange for what the employee will receive. This is critical. The offer letter should begin by describing the title and summarizing the role. Then the offer should articulate the company s compensation philosophy (how it rewards and motivates employees), and the rewards the company has chosen to use to achieve its business objectives. This includes the base pay and incentive amounts, and how the award of these incentives will be determined. In addition to compensation, all rewards for which the applicant is eligible should be detailed: benefits, 401(k), deferred compensation, etc. Unless the offer letter is intended to be a comprehensive employment agreement, only a summary description is necessary. Additionally, any restrictive clauses (non-competes or nondisclosures) should also be included. The right candidates will agree to these terms because the expectations will match. 4. Partner with an expert to achieve these objectives and sign the right candidates When it comes to designing each compensation program and determining the right rewards to offer, use a seasoned compensation consultant. From my own experience as a trusted advisor, I help achieve consensus. In close partnership with HR and senior executives, I develop compensation philosophies, conduct market analyses, design base pay, and incentive programs and always ensure the programs are linked to short- and long-term business strategies. Once consensus is achieved internally, the outward communications are greatly enhanced. From the job descriptions, to the website, to the offer letter, companies have greater success hiring and signing the right candidates. The company s expectations and the candidate s expectations match! That is the key to success. 3

4 HEALTH OUTCOMES PROMOTING TOBACCO CESSATION: THE GREAT AMERICAN SMOKEOUT Tobacco-Free Worksite According to the CDC, employee tobacco use costs U.S. companies an estimated $167 billion each year in direct medical costs and lost productivity. 1 Companies across the nation are increasingly adopting tobacco-free workplaces with specific policies and programs aimed at reducing tobacco use among employees. Creating a tobacco-free policy that works for your business requires thoughtful planning and a strategic rollout, but the payoffs are more than just financial: employer-sponsored tobacco cessation programs can have a significant impact in reducing tobacco use and thus improving the overall health of working adults. If you need resources to get your organization started with a smoking cessation program, consider promoting the American Cancer Society-sponsored Great American Smokeout on November 20, Believe it or not, tobacco use is still prevalent among employees. According to a study conducted by the Centers for Disease Control and Prevention (CDC), 42 million Americans almost 1 in every 5 still smoke cigarettes. Make a Plan As we approach the Great American Smokeout, this is a great time to assess your organization s current tobacco policies and to offer new resources to help your employees quit. Have you considered a smoke-free workplace? Have you identified the smoking cessation options provided by your medical carrier? Have you communicated smoking cessation resources to your employees and their families? Have you incorporated challenges that encourage employees and their families to quit smoking? What support can you offer those who have quit smoking, so they will not be tempted to start again? Promotion, Promotion, Promotion! The American Cancer Society offers free, downloadable resources including a Smokeout Countdown Clock and Craving Stoppers on their website that you can share with employees to place on their desktop for a daily reminder. Incorporate an article about smoking cessation benefits in an employee newsletter or feature a success story of a former smoker on your company intranet. Promotion is key to ensuring employee awareness of the dangers of smoking and informing them of available resources to help them quit for good. Start planning now for the Great American Smokeout on November 20 by visiting the Great American Smokeout website. For additional information about smoking cessation programs or resources, please contact your local Willis Client Advocate. 1 Centers for Disease Control and Prevention. Smokingattributable mortality, years of potential life lost, and productivity losses: United States, Morbidity and Mortality Weekly Report, 2008;57(45):

5 LEGAL AND COMPLIANCE AGENCIES RELEASE FINAL RULES ON EXCEPTED BENEFITS Federal agencies (the Departments of Labor, Treasury and Health and Human Services) recently issued final rules that amend previously issued regulations defining excepted benefits. Excepted benefits are exempt from many of the requirements that apply to other employer-sponsored plans under the Health Insurance Portability and Accountability Act (HIPAA) and the Patient Protection and Affordable Care Act (PPACA). Background Any employer-sponsored plan whether insured or self insured that provides, pays for or reimburses the cost of health care is a group health plan that may be subject to certain requirements under HIPAA and PPACA. However, to the extent that a plan consists of excepted benefits, it is exempt from certain requirements under HIPAA s portability rules (e.g., special enrollment rights) and PPACA s coverage reforms (e.g., covering dependent children to age 26). Note that excepted benefit coverage generally does not constitute minimum essential coverage under PPACA, so such coverage will not relieve employers of employer shared responsibility penalties. Nor will it satisfy the individual coverage mandate or disqualify individuals from receiving premium tax credits for coverage purchased through the public exchanges. There are four categories of excepted benefits: Benefits that are not health coverage. E.g., automobile insurance, liability insurance, workers compensation, and accidental death and dismemberment coverage are excepted in all circumstances. Limited-scope benefits may include limited-scope vision or dental benefits and benefits for long-term care (LTC), nursing home care, home health care or community-based care. These benefits are excepted if certain conditions are met: They are provided under a policy, certificate or contract of insurance separate from a major medical plan or They are otherwise not an integral part of a group health plan The prior regulations stipulated that for coverage to not be an integral part of the group health plan it must be optional, requiring employees who elected the coverage to pay an additional amount for it. Non-coordinated excepted benefits include both coverage for only a specified disease or illness (such as cancer-only policies) and hospital indemnity or other fixed indemnity insurance. These benefits are excepted only if certain conditions are met: There is no coordination between the provision of such benefits and any exclusion of benefits under any group health plan maintained by the same plan sponsor Benefits are paid with respect to any event without regard to whether benefits are provided under any group health plan maintained by the same plan sponsor Supplemental excepted benefits. Such coverage is provided under a policy, certificate or contract of insurance that is a Medicare or Tricare supplement or similar supplemental coverage specifically designed to fill gaps in the primary coverage; costs no more than 15% of the cost for the primary coverage; and does not vary eligibility, premiums or benefits based on any health factor of an employee or dependent. They are provided under a separate policy, certificate or contract of insurance Continued on page 6 5

6 Legal and Compliance continued from page 5 Final Rules The final rules amend the requirements for some of the limited-scope categories of excepted benefits; specifically, dental, vision, LTC benefits and employee assistance programs (EAP). While the final regulations apply for plan years beginning on or after January 1, 2015, the agencies will treat dental, vision, LTC and EAP benefits that meet the conditions of either the final or proposed regulations as excepted benefits. Although the proposed rules added a new exception for certain wraparound coverage meeting specific conditions, wraparound benefits were not included in the final regulations. The agencies indicated their intention to issue additional guidance on limited wraparound coverage in the future. Highlights of the final rules include: Eliminating the requirement that participants pay an additional premium or contribution for limited-scope benefits (dental, vision and LTC) to qualify as benefits that are not an integral part of a plan. Clarifying that in order to satisfy the not an integral part of a group health plan requirement, the limited-scope vision, dental or LTC benefits: Do not have to be offered in connection with a separate offer of major medical or primary group health coverage (and may be the only plan offered to participants); and either: Participants may decline the coverage (for example, can opt out upon request) or Claims for benefits are administered under a contract separate from claims administration for any other benefits under the plan Considering an EAP to be an excepted benefit if the EAP: Does not provide significant benefits in the nature of medical care Is not coordinated with benefits under another group health plan Participants in the other group health plan must not be required to use and exhaust EAP benefits before an individual is eligible for benefits under the other group health plan Participant eligibility for EAP benefits must not be dependent on participation in another group health plan No employee premiums or contributions are required as a condition of participation in the EAP There is no cost sharing under the EAP In the proposed regulations, the agencies invited comments on how to define significant (e.g., whether a program that provides no more than 10 outpatient visits for mental health or substance use disorder counseling, an annual wellness checkup, immunizations, and diabetes counseling, with no inpatient care benefits, should be considered as providing significant benefits in the nature of medical care). The final regulations do not adopt the 10-visit limit. To determine whether the EAP provides significant benefits in the nature of medical care, the final regulations clarify that the amount, scope, and duration of covered services are taken into account. The preamble to the regulation indicates that the agencies may provide additional clarifications on this issue in future guidance. Conclusion Employers that intend the dental, vision, LTC and EAP benefits they offer to be excepted benefits will want to review the final regulations and determine if any changes to their benefit plans are necessary. A failure to meet the excepted benefit requirements will trigger additional requirements under HIPAA and PPACA (as well as other laws) and could result in significant penalties for noncompliance. Continued on page 7 6

7 Legal and Compliance continued from page 6 IRS RELEASES PCORI FEE ADJUSTMENTS In the recently issued IRS Notice , the Internal Revenue Service (IRS) provides the adjusted applicable dollar amount used to calculate the Patient-Centered Outcomes Research Institute (PCORI) fee. For plan years that end on or after October 1, 2014 and before October 1, 2015, the PCORI fee is $2.08 multiplied by the average number of lives covered under the plan. Background The health care reform law includes a provision that promotes research to evaluate and compare health outcomes along with the clinical effectiveness, risks and benefits of medical treatments, services, procedures, drugs and other strategies that treat, manage, diagnose or prevent illness or injury. The PCORI was created to fulfill this provision. The funding source for the PCORI is a trust financed by fees paid by health insurers and sponsors of self-insured health plans. Responsibility for calculating and paying the PCORI fee lies with the health insurer for a fully insured plan and with the plan sponsor for a self-insured plan (employers that do not provide any self-insured coverage do not have filing responsibilities). Plan sponsors of selfinsured plans pay and report the PCORI fee on Form 720 Quarterly Federal Excise Tax Return. Although it is called a quarterly return, Form 720 for PCORI fee purposes is only filed once a year. A copy of Form 720 and instructions on how to complete and file it can be found on the IRS website. Plan sponsors must report and pay the fee for a plan year by July 31 of the calendar year immediately following the last day of the plan year. For plan years ending before October 1, 2013, the PCORI fee was $1 times the average number of lives covered under the plan. For plan years ending before October 1, 2014, the fee is increased to $2 multiplied by the average number of lives covered under the plan. For details on the calculation and applicability of the PCORI fee, see Willis Human Capital Practice Alert, February 2013, IRS Issues Final Regulations For Comparative Effectiveness Research Fees, and Questions and answers about the fee. A chart showing the types of plans subject to the fee is also available on the IRS website. TIME AGAIN TO IMPUTE INCOME ON GROUP TERM LIFE INSURANCE If an employee has more than $50,000 in group term life insurance coverage through his or her employer, the excess coverage may be taxable under federal law. If it is, federal law also requires the employer to impute income to the employee. Some employers satisfy the requirement by imputing income on life insurance coverage as it is provided during the year. Others wait until the end of the year. While it is generally recommended that employers track the value through the year, both methods are permitted as long as imputing is completed by the end of the year. Background The federal tax code excludes the cost of the first $50,000 in group term life insurance coverage that an employer provides to an employee. Because there is no tax code exclusion for additional employer-provided coverage, the cost of excess coverage is subject to federal income and FICA (Social Security and Medicare) taxes. The employer providing the excess coverage must report the cost of it on the employee s W-2 and must withhold the employee s portion of FICA taxes and pay the employer s portion. NOTE: The imputing requirement may be avoided in some cases if the premium rates under the group term life insurance policy(ies) meet certain requirements. This design strategy is discussed in the Group Term Life Benefits Employer Guide available on Willis Essentials but is beyond the scope of this article. (Editor s Note: Please contact your Willis adviser should you need to obtain access to materials described in this article.) Employee Pays, but Employer Provides If an employee pays the entire premium for life insurance, one might assume that the coverage is not employer-provided. For group term life insurance, however, that is not always the case. First, if the employee pays for coverage using pre-tax dollars, the coverage is treated, for tax purposes, as if the employer paid those premiums. Second, Continued on page 8 7

8 Legal and Compliance continued from page 7 even if the employee pays the entire premium on an after-tax basis, the coverage may be considered partly employer-provided. That can happen when the cost of coverage for tax purposes is higher than the premium that an insurer charges. IRS Determines the Cost of Group Term Life Insurance IRS regulations include a table of rates (reproduced below) for calculating the cost of excess group term life insurance for tax purposes. The Table I rates are not indexed for inflation, so they do not change each year the rates are the same for 2014 as they were for 2013 and will not change until the regulations are revised. Table I Rates for Group Term Life Insurance Monthly Cost/$1,000 of Coverage Age Bracket* Rates Under 25 $ $ $ $ $ $ $ $ $ $ and over $2.06 *When imputing income for 2014, use the employee s age on December 31, Of course, the IRS-determined rates may be higher or lower than the premiums actually paid for group term life insurance coverage. If the IRS rates are higher, an employee who paid 100% of the premiums for excess coverage with after-tax pay may nonetheless have additional taxable income due to the excess coverage as deemed by the IRS measurement of value. Determining the Amount of Income to Impute If an employer pays the premiums for all of an employee s group term life insurance coverage, determining the amount to impute is easy: subtract $50,000 from the total group term life insurance coverage in effect for the employee during the year and multiply the remaining coverage amount by the applicable Table I rate. If the employer does not pay all of the premiums, but the employee s contributions are made on a pre-tax basis, this same calculation applies. If the employee pays all or part of the premium for any group term life insurance coverage (including the first $50,000) on an after-tax basis, an additional calculation is needed. After finding the Table I cost of all coverage above $50,000, as described above, deduct from that amount all of the employee s after-tax contributions toward the coverage (including contributions for coverage under $50,000). If the result is a positive number, that is the amount to impute. NOTE: If an employee is covered by more than one group term life plan, the IRS requires aggregation of all coverage so that the employee may not exclude the cost of more than $50,000 in coverage for the year. A Note About Dependent Life Insurance Employer-provided dependent life insurance is taxable unless the amount of the insurance is less than $2,000. If the coverage exceeds $2,000, then the full amount of the dependent life insurance is taxable, including the first $2,000. 8

9 WEBCASTS HUMAN CAPITAL PRACTICE BENCHMARKING: HOW DO WE MEASURE SUCCESS? TUESDAY, NOVEMBER 18, :00 PM EASTERN Presented by: Jill Spiker, CEBS Senior Reporting and Analytics Consultant Human Capital Practice Do you want to be leading your industry with your benefit offering or would you rather spend your compensation dollars on direct compensation? Maybe you want to be in the middle of pack. Regardless of your competitive strategy, benchmarking against your peers provides insight into whether you re offering the right benefits at the right price. Benchmarking can help you determine if you are you using your benefit dollars effectively to attract and retain talent. Join us in November to learn: How to determine your optimal position with respect to your benefit offering compared to your peer group What are the key metrics to evaluating your plan compared to benchmarks? How to use benchmarking surveys to communicate the value of your benefit plan offering to employees To RSVP, click here. NOTE: Advance RSVP is required to participate in this call. Registration ends 1 hour prior to the call start time. BREAKING THROUGH THE ONLINE CLUTTER TO REACH EMPLOYEES WHERE THEY LIVE AND WORK IN A DIGITAL WORLD TUESDAY, DECEMBER 16, :00 PM EASTERN Presented by: Kristen Struys Senior Communication Consultant Human Capital Practice Your benefit program resources have a lot to compete with online funny cat videos, amazing sports replays and innovative eating stunts. Think your intranet or benefit guide is as entertaining as these award-winners? Most likely, the answer is no. There are many ways to inform employees about your company s benefits and still engage and entertain them. Videos, mobile websites, benefit portals and automated presentations are just some of the solutions that can help your company break through the online clutter and provide benefits information to your audience. Learn how to develop an effective benefits communication campaign to reach your employees where they live and work within the world of digital media. This presentation will address the following: Developing an effective benefits communication campaign Digital communication solutions available To RSVP, click here. NOTE: Advance RSVP is required to participate in this call. Registration ends 1 hour prior to the call start time. Each of the above programs have been approved for 1 recertification hour toward PHR, SPHR and GPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI homepage at 9

10 KEY CONTACTS U.S. HUMAN CAPITAL PRACTICE OFFICE LOCATIONS NEW ENGLAND Auburn, ME Bangor, ME Boston, MA Burlington, VT Hartford, CT Manchester, NH Portland, ME Shelton, CT NORTHEAST Buffalo, NY Morristown, NJ Mt. Laurel, NJ New York, NY Norwalk, CT Radnor, PA Wilmington, DE ATLANTIC Baltimore, MD Knoxville, TN Memphis, TN Metro, DC Nashville, TN Norfolk, VA Reston, VA Richmond, VA Rockville, MD SOUTHEAST Atlanta, GA Birmingham, AL Charlotte, NC Gainesville, FL Greenville, SC Jacksonville, FL Marietta, GA Miami, FL Mobile, AL Orlando, FL Raleigh, NC Savannah, GA Tallahassee, FL Tampa, FL Vero Beach, FL MIDWEST Appleton, WI Chicago, IL Cleveland, OH Columbus, OH Detroit, MI Grand Rapids, MI

11 Milwaukee, WI Minneapolis, MN Moline, IL Overland Park, KS Pittsburgh, PA Schaumburg, IL SOUTH CENTRAL Amarillo, TX Austin, TX Dallas, TX Denver, CO Houston, TX McAllen, TX Mills, WY New Orleans, LA Oklahoma City, OK San Antonio, TX Wichita, KS WESTERN Fresno, CA Irvine, CA Las Vegas, NV Los Angeles, CA Phoenix, AZ Portland, OR Irvine, CA San Diego, CA San Francisco, CA San Jose, CA Seattle, WA The information contained in this publication is not intended to represent legal or tax advice and has been prepared solely for educational purposes. You may wish to consult your attorney or tax adviser regarding issues raised in this publication /10/14 11