- Q & A from the MMA H.R. Help Line
- “Union” Notice Required
- The Cost of Daylight Savings Time
- Protection for Learning Disabilities
- MMA Fall Seminar Catalog Now Available
- Policy Committee Members Discuss Unemployment Insurance Reform
- NAM and NFIB Launch Ad Campaign Before House Vote to Rein in NLRB Agenda
- Office of Regulatory Reinvention Creates Inspection & Permitting Advisory Rules Committee
- Michigan Continues to Lead Nation in Public Health Preparedness
- Governor Wants Michigan to Become a Healthier State
- Governor Pushing for Mandated Autism Coverage
- Seasonal Flu Information for Businesses and Employees
- Survey Shows Half of Employers Conduct Drug Tests on Final Job Candidates
- Auto Enrollment Increases Participation, Not Preparing Employees for Retirement Study Shows
- New Date & Location for MMA Seminar: Generations in the Workforce
- Registration Still Open for MMA Seminar Discipline & Termination
1. Q & A from the MMA H.R. Help Line
A. “Union” Notice Required
Q: It has been reported that our company must post a notice to non-union employees regarding the right to join a union. Can this be true?
A: Yes. Effective 11/17/11, all employers subject to the National Labor Relations Act (NLRA) are required to conspicuously post a notice in the workplace informing all employees of their rights under federal labor law, including the right to join a union. In addition, employers must distribute the notice electronically to employees if the employer “customarily communicates with its employees about personnel rules or policies by such means.” This requirement has been established, and will be enforced by the National Labor Relations Board (NLRB). The notice contents will be created by the NLRB. Employers can secure copies at no charge through NLRB regional offices or via download from the Posting Requirements resource on the MMA website. The employer must take reasonable steps to ensure that the notice is not “altered, defaced, covered or otherwise rendered unreadable.” In workplaces where 20 percent of workers are not proficient in English, the employer must also provide the notice in the native language of the employees. The NLRB will also provide translated notices.
The willful failure to post a notice will constitute an unfair labor practice. The NLRB has broad authority to create “suitable remedies” for violations.
B. The Cost of Daylight Savings Time
Q: Are there any wage issues to consider in conjunction with the end of daylight savings time?
A: Actually, yes. Under the Fair Labor Standards Act (FLSA) and its Michigan counterpart, all non-exempt employees must be paid no less than the applicable minimum wage for each hour worked. Employees must also be paid overtime compensation – at time and one half the employee’s “regular rate of pay” for all hours worked beyond forty in a given work week. Depending on the scheduled work shifts of the company, the end of daylight savings time may cost money.
On 11/6/11 at 2:00 a.m., Michigan clocks are to be set back to 1:00 a.m. Any employee whose shift covers those hours will actually work the hour between 1:00 a.m. and 2:00 a.m. twice. The employee must be paid for both hours worked. Both hours must be counted toward the forty hour overtime threshold for that work week. Individual employment contracts, other applicable state and federal laws and collective bargaining agreements may impose additional requirements on employers. Remember, when two different laws or standards apply in this area, the provisions more favorable to the employee are always controlling.
C. Protection for Learning Disabilities
Q: Is an employee with a learning disability covered under the amendments to the ADA?
A: Yes. Prior to the amendment of the Americans With Disabilities Act (ADA), the Sixth Circuit Court of Appeals (which decides Michigan cases) often excluded individuals with learning disabilities from ADA coverage. That court also ruled on several occasions that “thinking” or “concentrating” are not major life activities under the law. The recent amendments to the ADA specifically expanded the coverage of what is considered a disability. The expressed goal was to include more individuals under the protective coverage of the Act. Specifically, the actions involving “thinking,” “concentrating,” “reading” and “brain function” have been added to the list of major life activities. Equal Employment Opportunity Commission (EEOC) regulations also make it clear that an employee with a learning disability who achieves a high level of academic success may still be considered disabled under the ADA because of the additional time and effort that may be required to read, write or learn compared to most people. In addition, an employer is prohibited from considering the positive effect of mitigating measures in the determination of whether an individual has a disability. Since the ADA amendments prohibit the consideration of such measures, the effect of therapies, learning behaviors, special software or requiring additional time to take a test does not play a role in whether someone is “substantially limited.” Reasonable accommodations may be necessary for these employees just as if they had other disabilities that were recognized prior to the amendments.
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. MMA Fall Seminar Catalog Now Available
Download the Fall 2011 seminar catalog. [pdf file] |
MMA’s fall seminar season is now underway. Be sure to watch your mailbox for the Fall 2011 Seminar Catalog for details on all of the great programs that are designed specifically with the needs of manufacturers in mind. The Catalog is also available on the MMA Seminar Schedule or you can request a copy from LeAnn Hicks at hicks@mma-net.org. Be sure to check the MMA website for details on additional programs that are added throughout the season as well.
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3. Policy Committee Members Discuss Unemployment Insurance Reform
Members of the MMA Human Resource and Government Affairs Policy Committees discussed conditions threatening the solvency of Michigan’s employer-financed unemployment insurance (UI) system and possible solutions during a conference call on 9/6/11. Both negative and positive balance employers will continue to see increasing payroll taxes as the state grapples with how to repay the debt of $3.1 billion incurred since 2008 for unemployment benefits.
On 9/30/11, a $117 million interest payment is due and the State of Michigan is facing a shortfall of almost $41 million and an even larger shortfall is anticipated for next year. To generate the income needed, in 2012 the State is considering spreading the interest shortfall across positive balance employers by levying an interest assessment on top of federal tax penalties that have been suffered by Michigan employers since 2010.
Every year since 2000, Michigan has paid out more in unemployment benefits than it has collected in unemployment taxes, indicating serious structural problems. Strong action was taken to reform the unemployment system during the spring legislative session when Michigan led the nation in an historic reform by reducing the number of weekly benefits paid from 26 to 20 weeks. However, if the State does not make significant movement toward repaying the debt within five years from the date it began borrowing — 2013 — the Department of Labor will assess the Benefit Cost Rate (BCR) penalty on all employers ranging from $189 to $233 per employee, a penalty the size of which has never before been assessed.
Among the options discussed to offset the costs of restoring solvency to the UI system were bonding the debt in the capital markets, transitioning from a quarterly to an annual income formula, requiring claimants to seek suitable work, strengthening disqualification standards and numerous administrative changes.
“Michigan’s Unemployment Insurance system is intended to provide temporary benefits to workers who are out of work through no fault of their own,” said Delaney Newberry, MMA director of human resource policy. “It is critical for Michigan to incorporate reforms to the system that will restore that intent and enact fiscally responsible solvency measures to ensure that manufacturers’ tax dollars are being spent in a truly accountable manner.”
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4. NAM and NFIB Launch Ad Campaign Before House Vote to Rein in NLRB Agenda
A vote is expected by the U.S. House soon on the Protecting Jobs from Government Interference Act (H.R. 2587) introduced by Representative Tim Scott (R-SC). This legislation would amend the National Labor Relations Act to prohibit the National Labor Relations Board (NLRB) from telling an employer where it can and cannot create jobs in the United States. On 9/8/11, the National Association of Manufacturers (NAM) joined with the National Federation of Independent Business (NFIB) in an ad campaign calling on members of Congress to support H.R. 2587.
The multi-state radio ad campaign highlights just one of the NLRB’s many recent actions that, if left unchecked, could result in the closure of a new state-of-the-art plant and the loss of thousands of jobs at a time when the national unemployment rate is above 9 percent. This initiative brings together small business owners and manufacturers of all sizes to educate policymakers and the public on the stark economic consequences of the NLRB’s actions. The radio messages can be heard on the NAM website. If you would like your representative to support H.R. 2587, you can send a message directly to your member of Congress also through the NAM website.
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5. Office of Regulatory Reinvention Creates Inspection & Permitting Advisory Rules Committee
The Office of Regulatory Reinvention (ORR) is organizing an “Inspection & Permitting Advisory Rules Committee” and is accepting applications through 9/30/11 from those who are interested in serving on this advisory body. Participants will serve on the committee for 120 days.
The Advisory Rules Committee is to review the State’s inspection and permitting processes as part of the ORR’s efforts to make the licensing and regulatory environment in Michigan more conducive to business growth and job creation.
“This Advisory Rules Committee will bring customers and regulators together to create a streamlined and predictable inspection and permitting process,” said Steven H. Hilfinger, Michigan’s Chief Regulatory Officer and director of the ORR. “A good economic development climate requires a regulatory process that is timely, understandable and fair, and not an impediment to projects that create jobs.”
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6. Michigan Continues to Lead Nation in Public Health Preparedness
A recent in-depth assessment conducted by the Centers for Disease Control and Prevention (CDC) scored Michigan’s ability to distribute and dispense large quantities of pharmaceuticals, vaccines, medical supplies and equipment during an emergency at 100 percent. This is the third consecutive year the Michigan Strategic National Stockpile (MISNS) Plan has achieved the highest possible rating.
“When state and local supplies are exhausted, we have a solid plan in place to receive medical supplies and distribute them rapidly across the state to ensure Michigan residents will be well cared for,” said Olga Dazzo, director of the Michigan Department of Community Health (MDCH).
“We have focused diligently on preparedness through various stages of planning, exercises and response,” said Dr. Jacqueline Scott, director of the Office of Public Health Preparedness (OPHP). “Much of our success in developing a high scoring SNS plan can be attributed to the emphasis on multi-agency coordination and collaboration at the state, regional and local levels.”
To learn more about the OPHP, visit the OPHP website.
For information about family and individual preparedness, visit the State of Michigan website.
For volunteer opportunities, visit the Michigan Volunteer Registry website.
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7. Governor Wants Michigan to Become a Healthier State
During a special address to the Legislature on 9/14/11, Governor Snyder unveiled his Health & Wellness plans. Key areas of focus in the plan were tackling obesity, getting more Michiganians into wellness programs and setting up an exchange for citizens and businesses to buy health insurance.
Among his action items are: enrolling more veterans in health care, providing children better access to healthier foods and exercise, tracking pediatric obesity by obtaining information from medical professionals to be entered into a state registry and outlawing smoking on state beaches.
During his address, the Governor revealed his body mass index was 26.8 and he weighed 192 pounds. The Governor plans to post the numbers online and provide updates on any changes. He also stepped onto a scale and quipped “I’ve got a few pounds to lose, folks,” and committed to losing 10 pounds by the end of the year. He also said he would like to install a scale at the Capitol, stating “there’s no better way than measurement and the opportunity to do this together.”
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8. Governor Pushing for Mandated Autism Coverage
Autism legislation, a personal issue for Lt. Governor Brian Calley whose daughter is diagnosed with the condition, has failed to pass the Senate but is now being pushed by the Governor as indicated in his Health & Wellness address. The governor says “it’s time for Michigan to join the 27 other states that mandate insurance coverage for Autism.”
MMA has consistently opposed health care mandates, including this one, not only because of the cost — which may force job providers to increase co-pays and deductibles or stop offering health care altogether — but also because the Association strongly believes that government should not interfere with decision-making processes that should be made in the workplace. Employers, not government, should decide what coverage they can afford and determine, with employees, what they may or may not want covered.
The Association must continually remind legislators that employers choose to provide benefits; they are not required to do so. And every mandate that they impose drives up the cost of providing those benefits and threatens to increase the ranks of the uninsured.
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9. Seasonal Flu Information for Businesses and Employees
The beginning of flu season is just around the corner. To help businesses, employers and their employees learn about flu prevention, the Center for Disease Control (CDC) is providing toolkits comprised of flyers, posters and other materials to be posted and distributed throughout the workplace.
To download the toolkit and other helpful information visit the CDC website.
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10. Survey Shows Half of Employers Conduct Drug Tests on Final Job Candidates
Information released by the Society for Human Resource Management (SHRM), in collaboration with and commissioned by the Drug & Alcohol Testing Industry Association (DATIA), found that 57 percent of employers conduct drug tests on all job candidates, while only 29 percent do not conduct drug tests on any job candidates.
The SHRM/ DATIA poll – Drug Testing Efficacy — found that some employers noticed an impact on employee productivity, absenteeism and workers’ compensation incidence rates after implementing drug testing programs.
A fifth of organizations (19 percent) reported seeing an improvement in productivity.
Four percent of employers said they had high absenteeism rates (more than 15 percent) after implementing drug testing programs, compared to 9 percent before beginning programs, a decrease of more than 50 percent.
Six percent of organizations saw workers’ compensation incidence rates of more than 6 percent after implementing programs, compared to 14 percent before starting drug testing programs, a decrease of more than 50 percent.
For employers with drug testing programs, 16 percent reported a decrease in employee turnover rates, while 8 percent reported an increase, after the implementation of a drug testing program.
The poll of 1,058 randomly selected HR professionals examines employers’ drug testing policies and practices. Among other findings:
- The majority of organizations (72 percent) with multinational operations reported that all, almost all or some of the same protocols and policies are applied on drug testing employees outside of the United States.
- Drug tests are not common for existing employees. Nearly two-thirds of organizations (64 percent) do not conduct post-employment drug tests on existing employees.
- When employers do post-employment drug tests, the most common tests are post-accident testing (51 percent), random testing (47 percent) and reasonable suspicion testing (35 percent).
- Most employers (77 percent) conduct drug testing at off-site drug testing facilities only, while 16 percent conduct drug tests both in-house and off-site.
“Cost, logistics and consideration for candidates influence when drug tests are given,” said Richard Jordan, a member of SHRM’s Staffing and Talent Management Expertise Panel. “If used, it’s typically at the pre- or post-offer stages as part of the pre-employment verification process, depending on each organization’s policy and standard procedures.”
For the full results of the study, see the SHRM website
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11. Auto Enrollment Increases Participation, Not Preparing Employees for Retirement Study Shows
Research is showing that the number of employees saving for retirement through 401(k) plans has increased, but the manner in which they enroll determines how well they will be prepared for retirement.
Reviewing information from 3 million employees across 120 large companies, Illinois-based consulting firm Aon Hewitt found that around 76 percent of eligible employees participated in company-contributed retirement saving plans last year, primarily driven by auto-enrollment features. The findings show a 10 percent jump from the number of employees who enrolled in 2005.
“There’s no doubt that automatic enrollment prepares a lot more people for the retirement years,” says Steven Dimitriou, managing partner with Mayflower Advisors in Boston. “Even though automatic enrollment can put employees on automatic pilot when it comes to their retirement savings, they’re better off than without such a plan.”
More employers are offering auto enrollment savings plans: 60 percent of companies in 2010 compared to just 24 percent in 2006. Findings suggest that auto-enrollment may decrease the overall savings rate for employees. Most companies set their default rates at three percent or lower. Those employees who automatically enroll often contribute as little as 2 percent of their monthly salary and do not increase their contribution rates. For these employees, the amount they are putting toward retirement is inadequate. The Vanguard Group recommends those with incomes below $50,000 save 9 percent of their salary or more, including a company match.
Aon Hewitt’s research shows that employees who voluntarily enroll tend to save at a significantly higher rate, an average of 7.8 percent monthly.
“If a company is going to implement an automatic enrollment plan, it should start off employees at a meaningful number,” says Pamela Hess, director of retirement research at Aon Hewitt. “Saving just 1 percent less over a career can have a dramatic impact on savings, ultimately leading to nearly a 15 percent loss in retirement income.”
To increase the amount employees are savings, some companies are building in automatic annual increases in their auto-enrollment plans. An example of this type of increase would start employees at the default amount of three percent, but automatically increase their contribution by one percent annually until the employee advises them to stop.
“A company has to give the automatic enrollment plan due consideration,” Gerald Wernette, Rehmann Financial’s director, says. “It has to put in the time and effort that will give real results.” That effort should translate into regular updates as to the company’s commitment and ongoing education for employees as to the plan’s benefit, according to Wernette.
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12. New Date & Location for MMA Seminar: Generations in the Workforce
On 9/21/11, MMA is offering the seminar “Generations in the Workforce” to help employers to understand and effectively manage the four generations of workers who are side-by-side in the workplace for the first time in history: Traditionalists, Baby Boomers, Generation Xers and Millennials.
Attendees will learn how to identify characteristics of the four generations in the workforce, discuss each generation’s unique contributions and areas for growth, diagnose workplace issues from a generational perspective, identify potential generational conflicts and help prevent them, and use motivation and retention tips specific to each generation.
The seminar will take place at the Fives Cinetic Automation Corporation located at 23400 Halsted Road in Farmington Hills. The session will run from 10:00 a.m. to noon. To register, visit the MMA Seminar Schedule or contact LeAnn Hicks at 800-253-9039 (press 9 and ext. 557) or 517-487-8557.
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13. Registration Still Open for MMA Seminar Discipline & Termination
With continued economic challenges, employers must learn to do more with less. Operating lean means more worker performance is required. This program will help employers use constructive discipline to improve workplace performance and sharpen competitive ability.
The seminar, Discipline & Termination, will take place on 9/22/11 at the office of Windemuller, located at 1176 Electric Ave. in Wayland. The session will run from 9:00 a.m. until noon.
The cost for the program is $85 for MMA members and $175 for non-members. Pre-registration is required. To register, see the MMA Seminar Schedule or contact LeAnn Hicks at 800-253-9039 (press 9 and ext. 557) or 517-487-8557 or hicks@mma-net.org.
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