The “new” rule for who is a spouse

by Michael Haberman on March 2, 2015 · 0 comments

The USDOL has replaced the definition of "spouse" effective 3/27/2015

The USDOL has replaced the definition of “spouse” effective 3/27/2015

As I have told classes and blog post readers the changing nature of relationships in the US will alter the framework and definitions we have in the workplace. Up to this time those changing definitions only applied to some states and to federal contractors under Executive Orders administered by the OFCCP. As of February 25, 2015 that has now changed.

The new rule

On February 27, 2015 the US Department of Labor published the FINAL rule on changing the definition of spouse under the Family and Medical Leave Act. According to the USDOL Fact Sheet:

  • The Department has moved from a “state of residence” rule to a “place of celebration” rule for the definition of spouse under the FMLA regulations. The Final Rule changes the regulatory definition of spouse in 29 CFR §§ 825.102 and 825.122(b) to look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. A place of celebration rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.
  • The Final Rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.

This new rule will be effective as of March 27, 2015.

The impact

This definitional change means that eligible employees, regardless of where they live, will be able to

  • take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition,
  • take qualifying exigency leave due to their lawfully married same-sex spouse’s covered military service, or
  • take military caregiver leave for their lawfully married same-sex spouse.
  • This change entitles eligible employees to take FMLA leave to care for their stepchild (child of employee’s same-sex spouse) regardless of whether the in loco parentis requirement of providing day-to-day care or financial support for the child is met.1
  • This change also entitles eligible employees to take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.

No big surprise to HR

This is no big surprise to anyone in HR, it has been underway since 2013. It might, however, require some education and training with the management and supervisory staff. Generally they are the first to get a request for time. Improper responses to these requests could end up spelling trouble.

Who is covered?

Just a reminder of what employers are covered. A covered employer is a:

  • private sector employer with 50 or more employees in 20 or more workweeks in the current or preceding calendar year;
  • public agency, including a local, state, or federal government agency, regardless of the number of employees it employs; or
  • public or private elementary or secondary school, regardless of the number of employees it employs.

Not all employees are covered by FMLA, so be sure to understand if someone is covered. Granting improper leave and trying to rescind it can lead to a lawsuit.

If you would like to read the new rule you can find it here. The Facts Sheet can be found here.


Future Friday: An important study on the Future of Work

by Michael Haberman on February 27, 2015 · 0 comments

The future of work is a wirearchy instead of a hierarchy.

The future of work is a wirearchy instead of a hierarchy.

Rather than offering my opinion on some aspect of the Future of Work I wanted to make you aware of a 2014 report that I find fascinating. I think it is a study that each of you should read, and re-read, and re-read until its main points sink in. It will make you think. It will point out things that need to change. It will excite you yet disturb you. Or at least it should.

The study

The study was conducted by Bill Jensen of The Jensen Group. It is entitled Search for a Simpler Way: Future of Work Study © 2014. It involved survey over a million people utilizing a team of consultants and futurists. From that work they developed three major points.

Point 1- Leadership

Leadership is responsible for holding back the future.  As they say “Too many leaders are willing to be out of sync with the needs of the workforce because embracing the future of work, including changing how companies are run, means higher risks, uncertainty and (perceived) loss of control of outcomes.” There needs to be an overhaul of business and work design. Unfortunately leaders and investors lack the courage to do so.

Point 2- Engagement

We totally have the wrong view of engagement. The study says “Engagement — and how we approach employees’ relationship with a company — is so horribly incomplete that it is dangerous to leaders who rely on it.” The traditional and current view of engagement is focused on what engagement does for the company and not on what it does for the employee. Employees say engagement should be where “They see companies as vehicles to achieve their goals and dreams —vehicles that can amplify their passions, achievements and community relationships beyond what they could have done on their own or elsewhere.” Currently 70% of employees say they are happy at this moment, and 69% believe in their own ability to achieve their dreams and 72% feel hopeful and optimistic about the future. But, and this is a big BUT, only 29% of employees feel they can achieve their dreams at their current workplace.

Point 3- Personal

According to the respondents of the study the hardest part of work of the future is in all the decisions that have to be made. The key to this is being able to make these decisions and having more courage and less fear, more authenticity and more self-awareness.

Jensen says to get started we just need to get started. Lead from where you are. He says “Have new and difficult conversations necessary to creating the future of work…”

We are encouraged to share this study. I encourage you to read it and like I said earlier, re-read it. Then live it. This is where the future of work is.

Photo credit: Microsoft/Bing Clip Art


The IRS issued temporary relief to small employers on the ACA.

The IRS issued temporary relief to small employers on the ACA.

Did you know there is a little known provision of the Affordable Care Act makes it illegal for employers with fewer than 50 employees to give them money to buy healthcare? Yes, those situations where a small business doesn’t have health insurance coverage but offers their employees some money so they can go to the market place and buy some health insurance on their own violates the provisions of the ACA. According to the ACA that constitutes a group health plan that does not meet federal requirements for coverage. There is a stated fine of $100 per day, per employee, for this violation. That is $36,500 per year per employee. Naturally as people have discovered this they have cried foul. Fortunately the government has listened and has provided some temporary relief, but just temporary.

IRS issues guidance

On February 18th, the IRS issued Notice 2015-17 which “provides transition relief from the assessment of excise tax under section 4980D for small employers (in particular, employers who are not applicable large employers) who reimburse or pay a premium for an individual health insurance policy for an employee.” This notice will be published in the IRS Bulletin that is to be published March 9, 2015.

According to the Bulletin:

The SHOP Marketplace addresses many of the concerns of small employers. However, because the market is still transitioning and the transition by eligible employers to SHOP Marketplace coverage or other alternatives will take time to implement, this guidance provides that the excise tax under Code § 4980D will not be asserted for any failure to satisfy the market reforms by employer payment plans that pay, or reimburse employees for individual health policy premiums or Medicare part B or Part D premiums (1) for 2014 for employers that are not ALEs for 2014, and (2) for January 1 through June 30, 2015 for employers that are not ALEs for 2015. After June 30, 2015, such employers may be liable for the Code § 4980D excise tax.

What this means is that if you give employees money to get health insurance, even if it is taxed as wages, then you have to stop or get qualified health insurance. However, according to one interpretation: “The Notice reaffirms that increasing an employee’s compensation and not conditioning that payment on the purchase of health coverage would not constitute an improper employer payment plan.” So even though many employers want to designate money to employees as going to healthcare you cannot do that without paying a fine. You can still give money to employees but it has to be unconditional.

You have until June to fix your reimbursement situation so you may want to take a look at what you are doing with employees.

Here is the bulletin and here is an explanation from Iowa State’s Center for Agricultural Law and Taxation.

Original source was Jaime Dupree’s Washington Insider


An Updated View: Should Smokers be a Protected Category?

by Michael Haberman on February 25, 2015 · 0 comments

Is not hiring a smoker an illegal act of discrimination?

Is not hiring a smoker an illegal act of discrimination?

In April 2013 I first wrote this post which appears below, though now with revisions. The reason for this revised version is found in an article by legal writer and attorney Tiffany Robertson of WeComply. In her article she asked the question Is Refusing to Hire Smokers Workplace Discrimination?

Robertson points out that the ACLU feels that discriminating against smokers is indeed workplace discrimination and, according to them, has no foundation in science. They site numbers that show that companies save no money, that productivity is not lowered, and smokers have no greater rates of absenteeism. They feel it is a person’s right to engage in risky behavior and that right should not be infringed on by an employer.

Robertson points out that refusing to hire smokers may still nudge up against discrimination laws. She points out that while smoking is not federally protected, if an individual has lung disease or emphysema from smoking they may be protected by the ADAAA. The ACLU and Robertson are not the first to raise the question. An article on the Freakonomics blog site two years ago raised the question. With that update here is my post from about two years ago.

From April 2013

I am writing a contrarian opinion to my own personal point of view. I personally think that employers should be allowed to refuse to hire smokers. I think businesses benefit in several ways from not having smokers on their payrolls in terms of healthcare costs, increased productivity and improved employee relations. But this article, Is It Unethical to Not Hire Smokers? on the Freakonomics blog site, made me think about the implications. I asked myself “should smokers be a protected category” that is protected by Title VII, or state law, from discrimination in the workplace?

Some facts

According to Stephen J. Dubnar 29 states do have prohibitions against discriminating against smokers and 65% of Americans think it is unethical. Yet many companies, arguing healthcare reasons have policies in place that state that smokers are not welcome in their workforce. Dubnar looked at other numbers and discovered the following:

  • 42% of American Indian or Alaska Native adults smoke,
  • In adults with less than a high school education, 32% are smokers; among college graduates, smoking rates are just over 13%
  • More than 36% of Americans living below the federal poverty line are smokers, as compared with 22.5% of those with incomes above that level.
  • Among the unemployed the smoking rate is 48% versus 22% in the employed.
  • My research showed that despite their lower exposure African American men are 34 percent more likely than white men to develop lung cancer. Black women tend to smoke less than white women but the two groups have similar lung cancer rates.

Adverse impact

These numbers indicate that by having a hiring ban on smokers we actually may be intersecting with other protected category protections. Is this ban having an adverse impact on already protected groups? Someone may want to run the numbers. Has anyone? (Updated note: perhaps the ACLU has.)

Are smokers more of a burden?

I think the reason that smokers receive this attention is that we perceive that smoking is a behavior habit that can easily be changed. Subsequently employers feel justified in saying “Control your personal habits and you can go to work for us. We don’t want to pay for your habit in lowered productivity and increased healthcare costs.” But the same thing could be said of other personal habits. Americans are notoriously obese, the result of the habits of overeating and not engaging in sufficient exercise. Should we have a ban on hiring fat people? (Many will say we do already) Some people engage in risky sports activities that could result in injuries that affect healthcare costs and their personal productivity. Do we ban people from engaging in this behavior?

Of course you could go on with this type of analysis on a number of areas. Most of us would not have policies controlling people’s behavior to that extent. Certainly this would conjure up pictures of dismal futuristic movies such as the society pictured in The Demolition Man. (Where healthy food is from Taco Bell)

What is the answer?

Despite the fact that I grew up with a chain-smoking father and saw what a terrible, addictive habit smoking is I am not sure I am ready to change my opinion on banning smokers at work. Unlike eating or exercising to excess, smoking at work is intrusive to other employees. Because of the addictive properties smokers take more frequent breaks to feed the habit. Perhaps nicotine addiction will get added to the list of disabilities under the ADA.

I am not sure that I have a ready answer to this dilemma. I will continue to advise companies that if they want to avoid smokers to do so, as long as it is legal in their state. But I am not sure that is the best answer.

What about you? What have your companies done in regards to smoking? What policies do you have in place to deal with this issue? I would especially like to hear from people in the 29 states that prohibit banning smokers.

Despite the view of the ACLU and the possible infringement on some ADA situations I still vote that employers should have some rights in making the decision to not hire a smoker. However, you need to be aware that no state requires that you allow smoking in the workplace and you can hold smokers to the same standards of attendance and productivity that non-smokers are held to.


Avoiding Employment Taxes is not a wise business strategy

by Michael Haberman February 24, 2015

Tweet All businesses realize that they have to pay attention to the US Department of Labor, in things like the Fair Labor Standards Act and OSHA, and to the EEOC, in areas such as discrimination. Every business also realizes that the IRS also pays attention to their activities. But did you know that the Department […]

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Is retaliation such a big deal?

by Michael Haberman February 23, 2015

Tweet The Merriam-Webster definition of retaliation is either “repay an injury in kind” or “to return like for like, especially to get revenge.” It comes from the Latin word “retaliare” which meant to pay back in kind. Originally it was used in both a positive and negative way, but today it only has the negative […]

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Future Friday: Is the future of your job in your values and your morality?

by Michael Haberman February 20, 2015

Tweet When people discuss the future of work naturally the subject of robots and artificial intelligence is discussed. Most people agree that many jobs will be taken over by robots and AI but the world is divided on whether these machines will think and thus be able to do the rest of human work. The […]

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The Employment Law Blog Carnival- It is OSCAR time!

by Michael Haberman February 19, 2015

Tweet Actually it is not Oscar time, but this carnival has 17 great “Kick-Ass” lines from an assortment of action movies. I have to admit I have seen every one of these movies and recognized each and every line. Eric Meyer of The Employer Handbook has assembled a great collection of blog posts and tied […]

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How often should you take the pulse of your employee engagement?

by Michael Haberman February 18, 2015

Tweet Employee engagement is recognized as critical to the success of a company. Many companies annually conduct a survey to measure engagement or employee satisfaction. What if measuring engagement once a year was not often enough? How often should you take the pulse of your employee engagement heart beat? Advantages and disadvantages with an annual […]

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The USDOL is looking for ideas and there is a deadline of February 25th

by Michael Haberman February 17, 2015

Tweet As you know many of us in HR and business complain about the regulations that the DOL develop and enforce based upon legislation that has been passed.  The U.S. Department of Labor is looking to be “smarter” as they say and they are soliciting ideas on a set of questions. Their appeal to the […]

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