The HR Strategist: June 2015
In this issue:
- Supreme Court Case Ruling: EEOC v. Abercrombie & Fitch
- Using HR Tech to Drive Employee Productivity
- OSHA Revises App to Help Workers Avoid Heat Illness
- DC Wage Theft Prevention Act
- Insight on Supreme Court's King v. Burwell Ruling
- Did You Know?
The much-awaited ruling in the Abercrombie & Fitch "hijab case" is here. Abercrombie & Fitch refused to hire 17 year old Samantha Elauf because the headscarf she wore pursuant to Muslim practices (which she was wearing at her job interview) conflicted with Abercrombie's "look" policy, which prohibited the majority of any head coverings.
The US District Court agreed with the EEOC that Ms. Elauf had a legitimate religious discrimination claim. The 10th Circuit of Appeals reversed the District Court ruling, saying that an employer cannot be liable for failure to accommodate a religious practice when an applicant does not provide actual knowledge of the need for accommodation. In an 8-1 decision, the US Supreme Court reversed the 10th Circuit's ruling.
Abercrombie argued that it didn't have any actual knowledge, because Ms. Elauf didn't say anything, yet the facts showed that Abercrombie clearly knew or at least suspected that Ms. Elauf's wearing a hijab was in fact a religious practice – and based a hiring decision on it. The majority of the 9 justices said actual knowledge was not the issue and not required here. According to the majority's reasoning the violation lies in the fact that religion was a motivating factor in Abercrombie's decision. In other words, Abercrombie assumed Ms. Elauf would request an accommodation and in the desire to avoid making such an accommodation decided not to hire her. The majority also relied on the fact that the relevant section of Title VII did not impose a knowledge requirement, whereas other statutes, (the ADA is a prime example) do require knowledge.
Justice Scalia, writing for the majority said,
"Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.
Thus, the rule for disparate treatment claims based on a filature to accommodate a religious practice is straightforward: An employer may not make an applicant's religious practice, confirmed or otherwise a factor in employment decisions."
What can employers learn from this? First, train your hiring managers and document any and all hiring decisions. Second, be very careful about imposing dress codes, and thirdly, make sure you have policies in place for considering requests for accommodations based on religious practices.
Technology has unequivocally changed the way people do business today. From hire to retire, there is an online application or software program available for each stage of the employee lifecycle that allows HR professionals to more efficiently perform their jobs and drive overall workforce productivity.
Recruitment. Applicant tracking systems help HR professionals to simplify and speed up the recruitment process, minimizing costs and increasing efficiency.
Onboarding. Online employee onboarding programs allow employers to get all of the paperwork out of the way well before an employee sets foot in the office, allowing HR professionals and managers to make the first day welcoming and engaging for new employees.
Benefits Enrollment. Taking benefits enrollment online can not only save time, but also help minimize any mistakes in data entry by empowering employees to make their own elections.
Time & Attendance. Automated time and labor management systems not only help prevent "buddy punching" and other forms of time theft, but they also give employers access to real-time data and adjust schedules with just a few clicks to better align with their staffing needs.
Employee Self Service. Online self-service platforms empower employees to view and make changes to certain information, like updating addresses, tax withholdings, 401(k) contributions, etc., as well as view paystubs, benefits elections, and more.
eLearning & Training. Talent management is key to employee engagement and retention; online learning management systems provide a simple and cost-effective solution of employers looking to provide growth opportunities.
Performance Management. Online performance management systems streamline the review process and allow for more meaningful feedback between managers and employees.
As the hot weather is here to stay, OSHA is placing potentially lifesaving information at outdoor workers' fingertips.
The agency has updated its Heat Safety Tool phone application, which is available for download on iOS and Android devices in English and Spanish. Workers can use the app to calculate the heat index at their worksite and determine heat illness risk levels.
The app includes information for workers to monitor themselves and others for heat illness signs and symptoms. OHSA said it updated the app for iPhones to include full-screen color alerts for all heat conditions, as well as other technical upgrades.
According to OSHA Administrator David Michaels, heat sickens thousands of workers every year and could be deadly unless proper actions are taken.
In a recent video about OSHA's heat illness campaign, Michaels said "anyone who works outside in hot weather is at risk. That includes construction workers, roofers, landscapers, farm workers, road crew workers, baggage handlers, and others. Employers need to ensure workers are provided ample drinking water, allow frequent breaks in shaded areas and schedule arduous tasks earlier in the day."
The Wage Theft Prevention Amendment Act of 2014 (WTPAA) has an effective date of February 26, 2015. The law, which applies to employees performing work in the District, requires detailed disclosure of pay information to employees and imposes severe penalties on employers that fail to comply.
As an employer of the District of Columbia, upon hire, you are required to provide a notice to employees of their employment. Also, within 90 days of the effective date of WTPAA, every employer shall furnish each employee with an updated written notice containing the information required. As proof of compliance, every employer shall retain copies of the written notice furnished to employees that are signed and dated by the employer and the employee acknowledging receipt of the notice.
If you currently have employees working in the District of Columbia, please take the following actions as soon as possible:
- Distribute a jointly-signed and dated "pay notice" to each of your employees working in DC, which contains the terms of employment. This includes the following employee categories:
- Current employees first employed before February 26, 2015
- New employees
- Provide an updated pay notice whenever required information - such as the applicable wage or an address - is changed
- Post a government notice summarizing the law
- Keep records for three years of the "precise time worked," instead of the typically required record of "hours worked" for employees covered by the DC Wage Payment and Wage Collection Law who are not exempt from minimum wage and overtime requirements based on the DC law's executive, administrative, professional, outside sales, or newspaper carrier exemptions.
The notices must be in writing, signed, and dated by both employer and employee, and retained as proof of compliance. As stated above, they have to be furnished to all employees (current and newly hired), and have to be reissued in amended form any time any of the required information is changed.
On June 25, 2015, the US Supreme Court ruled 6-3 for the Obama Administration in King v. Burwell, validating the availability of health insurance premium subsidies in federally-facilitated exchanges. This decision preserves subsidies for over six million low-income Americans who currently receive them and affirms the US Court of Appeals Fourth Circuit July 2014 decision.
The majority opinion, written by Chief Justice Roberts, held that the Section 36B tax credits are available to individuals that obtain coverage in a federal exchange. The court declined to apply the Chevron deference, which is often used when analyzing an agency's interpretation of a statute. The opinion noted that if the statutory language is plain, the Court must enforce it according to its terms, but oftentimes the meaning or ambiguity of certain words or phrases may only become evident when placed in context. Finding that the text was ambiguous, the Court looked to the "broader structure of the Act" to determine the broader intent of the ACA as a whole.
The Court concluded that while the petitioners' plain-meaning arguments were strong, the Act's context and structure compel the conclusion that Section 36B allows tax credits for insurance purchased on any exchange created under the Act. The opinion also reasoned that the "statutory scheme compels the Court to reject petitioners' interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very 'death spirals' that Congress designed the Act to avoid...It is implausible that Congress meant the Act to operate in this manner."
Implications of the Supreme Court's decision include:
- All individuals who purchase individual insurance on an exchange and that meet certain eligibility requirements will still have access to federal tax subsidies
- Insurers who offer products on exchanges will be able to maintain premiums as currently priced without having to take into account the possible elimination of certain tax subsidies
- The risk pools in the individual market will also remain unaffected. If tax subsidies had been unavailable in certain states that would have increased the number of people who could have qualified for a hardship exemption under the ACA's individual mandate, which would have allowed them to opt-out of buying insurance, and potentially adversely affected the risk pools
- The ACA's employer shared responsibility provisions, also known as the "employer mandate," will continue to apply in all states
Currently, the definition of "small employer" will expand in 2016 from employers with up to 50 employees to employers with up to 100 employees. This will subject insured groups covering 50-100 employees to the rules and regulations governing the small group market beginning in 2016.
Please meet Alanna McGuire - one of our dedicated Client Services Specialists. Alanna comes to us with a diverse background of payroll, benefits and Human Resources experience. She is the primary point of contact for a number of our clients and is responsible for payroll processing and benefits administration.
Here's a little information to get to know Alanna better:
- Favorite color: Purple
- Favorite book: How could I ever choose. The Fatal Crown by Ellen Jones or Prisoner of Tehran by Marina Nemat
- Favorite movie: The Princess Bride
- Favorite sports team: C. A. P. S! CAPS CAPS CAPS