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Supreme Court on Marriage Equality: What Employers Need to Know

In a 5-to-4 decision on Friday, the Supreme Court ruled that states are required to license marriages to same sex couples under the Fourteenth Amendment. Here’s a roundup of advice on what employers need to do following this decision.

Same-Sex Marriage Equality: What Employers Need to Know After Obergefell
National Law Review, Sarah Wisor: “Multi-state employers that have been dealing with state-specific policies that were dependent on state-law recognition of same-sex marriages may now want to implement a uniform policy that applies to all locations.”

Wisor offers a helpful rundown of many of the Human resource policies and benefits that must be addressed, including FMLA, bereavement, and other leaves, marital status discrimination, updating emergency contacts and beneficiaries, benefit updates, and W-4 and tax forms.

Employers need to respond to ruling in same-gender marriage decision
Inside Counsel, Ed Silverstein: “When commenting on the Supreme Court’s decision, Scott Cooper, an attorney with Blank Rome’s Labor and Employment practice group, said, “The top policy review issues for employers following the case will be benefits, leave of absence and childcare related. Any employer that has previously relied upon the ‘traditional definition of marriage’ to exclude some employees will now have to revisit those policies and decisions. This will include access to benefits, when leaves may be taken and how the employer will recognize child care issues.”

What Employers Need To Know About Supreme Court Gay Marriage Ruling
Wall St. Journal, Rachel Emma Silverman: “Companies that offer spousal health benefits and use a separate insurance company to fund their benefits will now be required to cover both gay and straight spouses. “Based on the court’s ruling today, there is simply one type of spouse,” says Todd Solomon, a law partner in the employee-benefits practice group at McDermott Will & Emery in Chicago, who has been tracking same-sex employee benefits for nearly two decades.”

How Will the Supreme Court Decision on Same-Sex Marriage Impact Employers?
Huffington Post, Julie Stich: “Employers located in states where same-sex marriage has not been recognized or allowed will need to change employment, HR and benefits policies to comply. For example, employers offering fully insured group health plan coverage to employees will now need to provide coverage for same-sex spouses if coverage is provided to opposite-sex spouses. Access to and eligibility for other benefits, such as employee assistance programs, tuition reimbursement and bereavement and other types of leave, must be the same for all legally married couples. Prior to this decision, employees working in states that did not recognize or allow same-sex marriage had to pay additional state taxes on benefits provided to their spouse. That no will longer apply.”

3 Guard Rails for Workplace Discussions on Marriage Equality
Jonathan Segal of SHRM says that strong feelings engendered by the Supreme Court decsision
will spill into workplaces next week and for the indefinite future. He notes:

“It is not practical nor desirable to prohibit such discussions. Indeed, because of the connection between marriage and some workplace issues, a prohibition may be unlawful in some circumstances.

But we also cannot ignore the potential for deep emotional feelings to result in deep emotional workplace divisions.”

He offers 3 suggested guardrails for workplace discussions, encouraging leaders to stay within them and to respond proactively to subordinates who do not.

Additional resources

Crain’s Detroit Business: Same-sex marriage ruling gives employers, attorneys much to consider in benefits coverage

Dallas Business Journal: Same-sex ruling means employers should make benefits ‘gender irrelevant’

Chicago Tribune: What does marriage equality mean for the workplace?


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Supreme Court ruling: King v Burwell

By a 6-3 decision, the U.S. Supreme Court ruled in King v. Burwell that health insurance subsidies provided by the Affordable Care Act should be available regardless of whether they are in state exchanges or federal exchanges. Had the decision gone the other way, millions of people would have lost tax subsidies causing a major disruption in the healthcare market; but with the challenge defeated, employers won’t see much in the way of change from the status quo.

The biggest change is this: the Supreme Court decision means an increased measure of stability. A statement from the National Association of Insurance Commissioners (NAIC) talks about why this is important.

“Uncertainty in insurance is not a good thing. The decision allows regulators, consumers and the industry a level of certainty that supports stability for insurance markets in our states. The NAIC will continue to support state insurance departments – as we have done since the passage of the ACA – and ensure consumers are protected, regardless of the type of exchange in any given state. There are still a number of challenging issues facing health insurance consumers across the country, and U.S. insurance regulators are working together through the NAIC to promote stable and competitive markets.”

Also see:

BenefitsPro: King v. Burwell decision a relief for HR managers
Dan King offers a roundup of opinions, including NBGH and SHRM

Workforce: Supreme Court Rules in Favor of Insurance Subsidies

Insurance Journal: Supreme Court Upholds Obamacare Tax Subsidies

Inside Counsel: What businesses should do after King v. Burwell

Wellness Incentives EEOC ruling pending
With much of the uncertainty essentially lifted, employers can lay plans accordingly.

One important provision in the Affordable Care Act is the provision that allows employers to offer wellness incentives. In April, the EEOC published a proposed rule applying to employer wellness programs that are part of group health plans. (See our prior post: EEOC’s Proposed Rule on Employer Wellness Permits Incentives) The proposed rule offers guidance for employers who want to offer incentives for employees to participate in wellness programs or to achieve certain health outcomes. Allowable incentives may be up to 30 percent of the total cost of employee-only coverage or as high as 50% of the total cost of employee coverage for tobacco-related wellness programs.

By way of example EEOC notes:

“…if the total cost of coverage paid by both the employer and employee for self-only coverage is $5,000, the maximum incentive for an employee under that plan is $1,500.”

As part of its rule making, EEOC invited comments through June 19 and will issue a final rule at some future date.

Additional resources

EEOC Guidance: Redesigning Wellness Programs to Comply with the ADA

EEOC Issues Proposed Wellness Programs Rules under the ADA – Is Your Employer-Sponsored Wellness Program “Voluntary”?

King v. Burwell: Resources on the U.S. Supreme Court Case

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News briefs: Harassment; Firing for Medical Marijuana Use; Classifying Workers; & More

Colorado High Court Ok’s Firing of Worker For State-Authorized Use of Medical Marijuana – Thomas A. Robinson talks about Colorado’s recent Supreme Court decision in Coats v. Dish Network which upheld the employer’s firing of an employee for using marijuana. The employee is a quadripalegic who had been approved by the state for medical marijuana. Upon being discharged, the employee filed a wrongful termination suit, but the court found that “Employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are accordingly not protected by the statute.”
Related: Workers Can Be Fired For Off-Duty Marijuana Use, Colorado Court Says

Harassment “Must-haves” – Employment Law Attorney Robin Shea offers two excellent posts on “must haves” for your organization’s harassment effort. In the first post she identifies and discusses the following “must-have” critical components:

  1. An effective no-harassment policy
  2. Regular, high-quality harassment training
  3. Prompt, thorough, and fair investigations of harassment allegations
  4. Appropriate action based on whether the allegation is substantiated
  5. No retaliation

In a follow-on post she focuses on harassment investigations.

HR 101: Are You Classifying Your Independent Contractors Correctly? – Kevin Mason, TLNT: “What is the difference between an independent contractor and a W-2 employee, you ask? How employees are classified will affect how much a business pays in taxes, the amount of withholdings from employee’s paychecks and which tax documents need to be filed. Classifying employees correctly is a critical issue that business owners need to understand.
Incorrect classification can lead to large fines and penalties for failing to file the proper tax returns and paying employment taxes.”
Related: California court says an Uber driver deserves to be paid like a full-time employee

How to Cure Bad Bosses – At Switch & Shift, Shawn Murphy discusses the characteristics of bad bosses and suggests concrete steps that bad bosses can take to become better ones.

Are your HR programs too out of date to engage employees? – Dana Manciagli, Louisville Business First: “Over the past two decades, the workplace has changed drastically. We’re an information economy. Implementation of flexible work arrangements continues to rise (nearly 80 percent between 2005 and 2012 alone). Casual dress is de rigueur. Millennials have arrived with their talents, mobile phones, apps, devices and a desire for meaningful work.
Yet many companies haven’t adjusted benefits to reflect these shifts. In fact, according to a new report by Quantum Workplace and Limeade, there’s a huge disconnect between what employees want and what employers provide when it comes to benefits, perks and programs.”

How To Help Someone who Suffers a Loss In the Workplace – Michelle Apple, L.C.S.W. and Russ Pitts, TakeThis, Inc.: “Whether sudden or expected, tragic or peaceful, dealing with the loss of a friend or colleague is never easy. It is entirely normal to feel sad or even depressed after suffering a loss, and for some people a personal loss may make dealing with their existing mental health issues even more complicated.
Friends, family, and co-workers are the major supporters for those who experience a loss. They are the first line of defense. But many people worry they do not understand how to handle such situations, or how to offer help. There is also a great fear of saying or doing the wrong thing, or making someone’s suffering worse.
Here is a quick guide to helping someone positively cope with their grief>”

When Your Return to Work Process is Reminiscent of Herding Cats – Rene Gates, Blogging4Jobs: “Programs aimed at returning employees to work are oftentimes scattered in multiple departments and isolated by the type of employee absence. One department manages workers’ compensation, another manages disability claims, and your HR team manages FMLA absences, or it’s outsourced to a third party. Efforts to coordinate and integrate all of the data are oftentimes met with resistance because of these departmental “territories.” Unfortunately, those interested in collaboration often feel like they’re trying to herd a bunch of stray cats.”

‘I forgive you.’ – In a stunning testimony to their faith and courage, relatives of people slain at the historic African American church in Charleston, S.C. appeared at the arraignment of the killer and went on record to express their forgiveness. This is reminiscent of the Sikh reaction in the aftermath of a massacre at an Oak Creek, Wisconsin temple three years ago and the Amish forgiveness extended to the family of the man who killed their daughters in a Lancaster County schoolhouse. In fact at least one surviving Sikh family member will be traveling to Charleston to offer comfort and support.

Hospitals: More Self-Inflicted Injuries in Kids – Amy Norton, WebMD: “A growing number of U.S. kids are landing in the ER because of self-inflicted injuries, a new study finds. Between 2009 and 2012, self-injuries accounted for a rising percentage of children’s emergency room trips — increasing from 1.1 percent to 1.6 percent of all visits.
Most of the time, researchers found, the injuries were not life-threatening, and included acts such as cutting, piercing and burning. But, while the total numbers remained relatively low, experts said the increase in self-injuries is concerning.

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Quick takes

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Why it’s time to forget the pecking order at work

Former CEO of five businesses and author, Margaret Heffernan explores the all-too-human thought patterns — like conflict avoidance and selective blindness — that lead organizations and managers astray. In this TED talk, she focuses on how “Organizations are often run according to “the superchicken model,” where the value is placed on star employees who outperform others. And yet, this isn’t what drives the most high-achieving teams. Business leader Margaret Heffernan observes that it is social cohesion — built every coffee break, every time one team member asks another for help — that leads over time to great results. It’s a radical rethink of what drives us to do our best work, and what it means to be a leader. Because as Heffernan points out: “Companies don’t have ideas. Only people do.”

Alternate video source and transcript available at TED Talks.

More on Margaret Heffernan

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Shared Grief: Sheryl Sandberg, Joe Biden

As a nation, we’ve shared two lessons in grief recently through the experiences of public figures and their losses: Sheryl Sandberg COO of Facebook with the unexpected death of her husband while on vacation and Vice President Joe Biden on the loss of his son to cancer at the age of 46. Grief and loss are something we all experience – yet they’re topics that most find difficult to discuss. Coping with grief is one of the most frequent issues that cause employees to pick up the phone and seek our EAP services; Similarly, employers and supervisors frequently look for help in how best to support grieving employees who are returning to work. Both these losses offer examples of public figures who are balancing tremendous personal grief and loss with highly demanding work responsibilities.

Last week, Sheryl Sandberg published a moving 2,000-word essay on the one month anniversary of her husband’s death. In her Facebook post, she shared her feelings, her search for meaning and lessons learned.

The essay is brutally honest and raw. One of the passages that interested us greatly was her return to work, which she saw as restorative – but she also describes the difficulty her colleagues had with her loss and finding ways to support her:

“For me, starting the transition back to work has been a savior, a chance to feel useful and connected. But I quickly discovered that even those connections had changed. Many of my co-workers had a look of fear in their eyes as I approached. I knew why—they wanted to help but weren’t sure how. Should I mention it? Should I not mention it? If I mention it, what the hell do I say? I realized that to restore that closeness with my colleagues that has always been so important to me, I needed to let them in. And that meant being more open and vulnerable than I ever wanted to be. I told those I work with most closely that they could ask me their honest questions and I would answer. I also said it was okay for them to talk about how they felt. One colleague admitted she’d been driving by my house frequently, not sure if she should come in. Another said he was paralyzed when I was around, worried he might say the wrong thing. Speaking openly replaced the fear of doing and saying the wrong thing. One of my favorite cartoons of all time has an elephant in a room answering the phone, saying, “It’s the elephant.” Once I addressed the elephant, we were able to kick him out of the room.”

At another point in the essay, she notes that “Real empathy is sometimes not insisting that it will be okay but acknowledging that it is not.”

Sandberg has a personal mission to help women achieve success in the workplace. In her book Lean In: Women, Work, and the Will to Lead, she looks at both societal and self-imposed barriers to success. Her public sharing of her personal experiences in grief offers another type of lesson for us all.

In another highly public loss, we saw the Biden family cope with the death of son, father, husband and public servant Beau Biden following his death from brain cancer. It seems a particularly difficult loss, not just due to Beau’s youth and promise, but also because he was a surviving son of a horrific tragedy that took the life of Joe Biden’s first wife and daughter right after he was elected to office some four decades ago. Biden’s commitment to his surviving sons and his family has been exemplary and is often praised by his colleagues in DC. In addition to his family commitment, Biden has often been called the “mourner in chief.” Having experienced a profound loss, he is able to connect with those who grieve.

If you haven’t seen his 2012 address to surviving families of fallen military heroes at the opening session of the 18th Annual TAPS National Military Survivor Seminar, it’s a must see. He speaks from the heart about recovery form loss – you can hear how much his remarks resonate by the audience reaction.

Both Biden’s speech and Sandberg’s essay offer clues to ways that we as HR managers and supervisors can support grieving employee in their time of loss.

Related resources

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Abercombie & Fitch vs EEOC: lessons for employers

Recently, in an 8-1 ruling, the Supreme Court found that retailer Abercrombie & Fitch had violated the civil rights of Samantha Elauf, a job applicant who wore a hijab to her interview. The company declined to hire Elauf because her dress violated the company’s “look policy” which prohibited head wear of any type. The company held that because all head wear was prohibited, its decision was not discriminatory. In its ruling, the court stated that:

“The rule for disparate-treatment claims based on a failure 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.”

See the ruling: EEOC v. Abercrombie & Fitch Stores

In this post, we look at a roundup of analysis on the case from employment law and HR experts.

In JDSupra Business Advisor, employment law attorneys James Burns, Jr., Megan Farrell, Stephanie Wilson of Reed Smith consider the EEOC v. Abercrombie & Fitch case and ask if you need to ask applicants whether they require religious accommodation. They offer background and an overview of the case and summarize the Supreme Court’s ruling and its implications:

“Because questions about an applicant’s religion could themselves give rise to a discrimination claim, employers are likely safer raising that subject only where, as in Abercrombie, they know or have reason to suspect that the employee’s practice is religious. Employers should ensure that all applicants are given full notice of all essential job functions and other workplace policies, including those relating to appearances and the days and hours they must work, and that they ask applicants if any such requirements may cause a problem. That gives applicants the opportunity to raise any possible conflicts based on religion and open the door to a discussion about possible accommodations. In this way, employers may avoid religious discrimination claims while satisfying any potential accommodation requirements.”

In HR Cafe, Dave Clemens looks at just how such a conversation might look. He talks about how the SCOTUS ruling on religious garb puts employers in a double bind: in the hiring process, employers can’t ask applicants what religion they follow, but the recent Supreme Court decision calls on employers to consider religious accommodation for dress. Clemens asks if employers “…have to guess whether what you’re seeing is merely a personal fashion statement, or rather an expression of a religious belief that is protected under federal anti-discrimination law?”

He offers a sample dialogue for how employers might tackle this thorny issue in an interview:

Supposing the applicant across the desk from you sports a bushy beard and long, unkempt hair. The dialogue might sound something like this:

Q. “Under our grooming code, we ask employees not to wear full beards or hair that falls below the shoulders. That’s because we’ve had hygiene and safety problems with these in the past. We do allow trimmed beards and hair shorter than shoulder-length. Would you be able to comply with this policy if you were hired?”

A. “I don’t know. You can see my beard and hair. Would they comply?”

Q. “Well, no. But tell me: Is your grooming the result of personal preference, or is there some deeper meaning?”

A. “Actually, there is. I’m a Nazarite, and we believe that growing out our hair and beards expresses devotion to God.”

In Inside Counsel, Ed Silverstein turns to employment law attorney Laura O’Donnell for lessons that employers should take from the decision. O’Donnell says that the case shows that companies have to think very hard about having image-based policies and that organizations that do choose to have such policies should proactively address possible exceptions when it comes to protected groups. She also notes that the case points to the importance of training for managers who make hiring decisions to base hiring on objective factors and job duties and to focus on whether the applicant can do the job.

Additional analysis and advice for employers:

Can You Still Have Dress Codes After Abercrombie Decision?

EEOC v. Abercrombie’s lesson for employers – in 5 minutes or your money back

The Supremes on Religious Discrimination

Opinion analysis: New shield against religious bias

EEOC v. Abercrombie & Fitch: when religion and fashion collide

PODCAST: Dressed for discrimination? Abercrombie & Fitch ‘look policy’ gets SCOTUS review

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