SPECIAL REPORT

Top 10 Best Practices in HR Management For 2011

30610860

SPECIAL REPORT

Top 10 Best Practices in HR Management For 2011

30610860

Executive Publisher and Editor in Chief: Robert L. Brady, J.D. Managing Editor–HR: Legal Editor: Editor: Production Supervisor: Graphic Design: Production & Layout: Patricia M. Trainor, J.D. Susan E. Prince, J.D. Elaine V. Quayle Isabelle B. Smith Catherine A. Downie Sherry Newcomb

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Top 10 Best Practices in HR Management for 2011

Table of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 #1 Health Care in 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 #2 FMLA Paid Leave Initiatives and the In Loco Parentis Rule . . . . . . . . .6 Paid Leave Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 The In Loco Parentis Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 #3 Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 Best Practice: Ethics, Integrity, Training, Communication Steer Weyerhaeuser to Success . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Best Practice:Yahoo! Makes Ethics Training Entertaining . . . . . . . . . . . . . . . . . . . . .14 #4 Social Networking and Blogging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Social Networking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Blogging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 FTC Guidelines on Testimonials and Endorsements . . . . . . . . . . . . . . . . . . . . . . . . .19 Best Practice: Look to Social Media for Disaster Preparedness Updates . . . . . . . . .19 #5 Corporate Social Responsibility and the Green Movement . . . . . . . .21 5 Reasons Why You Need a Green Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 Going Green: Not Just Good Deeds … Good Business . . . . . . . . . . . . . . . . . . . . . . .21 Best Practice: BLR’s Green Team Helps Employees Be Enviro Conscious . . . . . . . .25 10 Tips to Go Green—And Save Some Green! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 #6 Increasing Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Equal Employment Opportunity Commission (EEOC) . . . . . . . . . . . . . . . . . . . . . . .28 Wage and Hour Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 #7 Employee FLSA Classifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 Amendments to the Fair Labor Standards Act (FLSA) Recordkeeping Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 Amendments to the FLSA Companionship Services Regulations . . . . . . . . . . . . . .32 #8 Retirement of the Baby Boomers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Labor Shortages Are Predicted:‘Encore Careers’ May Be Solution . . . . . . . . . . . . . .33 U.S. Workers Toil on Through Their Twilight Years . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 12 Points to Consider with Retirement Plan Options . . . . . . . . . . . . . . . . . . . . . . . . .35

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#9 Government Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 New Section 503 Disability Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Congressional Testimony Outlines OFCCP’s Priorities . . . . . . . . . . . . . . . . . . . . . . . .37 #10 Workplace Wellness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 What Is Wellness? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 Legal Issues Related to Workplace Wellness Programs . . . . . . . . . . . . . . . . . . . . . . .39 Setting Up a Workplace Wellness Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42 Suggestions for Wellness Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Get Employees Engaged in Wellness by Creating Strong ‘Culture of Health’ . . . . . .50 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51

Top 10 Best Practices in HR Management for 2011

Introduction
The role of Human Resources is changing as fast as technology and the global marketplace. Historically, the HR department was viewed as administrative overhead. HR processed payroll, handled benefits administration, kept personnel files and other records, managed the hiring process, and provided other administrative support to the business. Those times have changed. The positive result of these changes is that HR professionals have the opportunity to play a more strategic role in the business. The challenge for HR managers is to keep up to date with the latest HR innovations—technological, legal, and otherwise. This special report will discuss the top 10 best practices in HR management for 2011—in other words, how HR managers can anticipate and address some of the most challenging HR issues this year. This report will give you the information you need to know about these current HR challenges and how to most effectively manage them in your workplace.

#1 Health Care in 2011
According to the recent BLR® survey HR Concerns for 2011, 79% of over 850 respondents claimed that healthcare costs and requirements is their number one concern this year. The enactment of the Patient Protection and Affordable Care Act (PPACA), as amended by the Health Care and Education Reconciliation Act of 2010 (HCERA), collectively referred to as the Affordable Care Act (ACA), launches an extended period during which far-reaching changes to the American healthcare system will take effect. These reforms are built on the current employer-based system and will impact every employer in the country. Reform on this scale is multifaceted and initially takes effect in uneven increments between 2010 and 2018. The information below covers what has to be planned for in 2011, 2012, 2013, 2014, and 2018, as the pieces of the reform package come into play. Keep in mind that the two biggest pieces of the reform process, the individual mandate and employer play-or-pay, don’t take effect until 2014.

2011
Wellness Grants for Small Employers. An amount of $200M is authorized to be appropriated for the period of fiscal years 2011 through 2015 to fund grants to employers with fewer than 100 employees to provide their employees with access to comprehensive workplace wellness programs. Exclusion of the Costs for Over-the-Counter Drugs for Reimbursement from HRAs, HSAs, FSAs, and MSAs. Effective for taxable years beginning after December 31, 2010, the costs of over-the-counter drugs not prescribed by a doctor may no longer be reimbursed through a health reimbursement account (HRA) or health flexible spending account (FSA) and may no longer be reimbursed on a
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tax-free basis through a health savings account (HSA) or Archer Medical Savings Account (MSA). Tax on HSA and MSA Distributions Not Used for Qualified Expenses. Effective for taxable years beginning after December 31, 2010, the tax on distributions from a health savings account or an Archer MSA that are not used for qualified medical expenses increases to 20% of the disbursed amount. Medical Loss Ratio (MLR) Reimbursement. Beginning not later than January 1, 2011, plans in the individual and small group market must maintain an MLR of 80%, and plans in the large group market must maintain an MLR of 85%. For each plan year, plans must provide a rebate to each enrollee on a pro rata basis equal to the amount of premium revenue spent on nonmedical costs that exceed the percentage limits. Form W-2 Reporting of Healthcare Cost Information. Effective for tax years beginning after December 31, 2010, employers are required to report on Form W-2 the total cost of employer-provided group health coverage that is excluded from the employee’s gross income. The amount to be reported does not include amounts excluded from income through an Archer MSA, an HSA, or employee salary reductions to a flexible spending arrangement. The Internal Revenue Service (IRS) has stated, however, that reporting the cost of such coverage will not be mandatory for Forms W-2 issued for 2011 (IRS Notice 2010-69). CLASS Act. The Community Living Assistance Services and Supports Act (CLASS Act) creates a national voluntary insurance program for purchasing community living assistance services and supports to provide individuals with functional limitations with tools that will allow them to maintain their personal and financial independence and live in the community through a new financing strategy for community living assistance services and supports, establish an infrastructure that will help address community living assistance services and supports needs; and alleviate burdens on family caregivers. Employers will be encouraged to participate in the CLASS Act and adopt automatic enrollment rules that default employees into the CLASS Act, starting January 1, 2011. Benefits Summary Requirement. By March 23, 2011, national standards for use in compiling and providing a summary of benefits and coverage explanation that accurately describes the benefits and coverage under group health plans and group or individual health insurance coverage are to be issued. Simple Cafeteria Plans for Small Employers. Effective beginning after December 31, 2010, Internal Revenue Code Sec. 125 is amended to provide for simple cafeteria plans for small businesses that include a safe harbor from nondiscrimination requirements for employers that employed an average of 100 or fewer employees during either of the 2 preceding years. If an employer qualifies as a small employer, it retains the status until it employs an average of 200 or more employees during the preceding year.

2012
Benefits Summary Requirement. By March 23, 2012, a summary of benefits and coverage explanation that meets the national standards for providing a summary of benefits and coverage must be provided to applicants at the time of application to

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the enrollee before the time of enrollment or reenrollment, and to a policyholder or certificate holder at the time of issuance of the policy or delivery of the certificate. Quality of Care Reporting. No later than March 23, 2012, requirements for use by group health plans and health insurance issuers offering group or individual health insurance coverage to report benefits and healthcare provider reimbursement structures that improve health outcomes through the implementation of activities are to be issued. Examples of activities to be reported include quality reporting, effective case management, care coordination, chronic disease management, and medication and care compliance initiatives; activities to prevent hospital readmissions through a comprehensive program for hospital discharge that includes patient-centered education and counseling, comprehensive discharge planning, and postdischarge reinforcement by an appropriate healthcare professional; activities to improve patient safety and reduce medical errors through the appropriate use of best clinical practices, evidence-based medicine, and health information technology under the plan or coverage; and wellness and health promotion activities. Plans and insurers must annually report whether the benefits under the plan or coverage satisfy these elements.

2013
Health Insurance Administration Simplification. Rules establishing a single set of operating rules for eligibility verification and claims status must be adopted July 1, 2011, and take effect January 1, 2013. Rules for electronic funds transfer and healthcare payment and remittance rules must be adopted by July 1, 2012, and take effect January 1, 2014. Rules for health claims or equivalent encounter information, enrollment and disenrollment in a health plan, health plan premium payments, and referral certification and authorization rules are to be adopted by July 1, 2014, and take effect January 1, 2016. Health plans must document compliance with these standards or face a penalty of no more than $1 per covered life. The penalty takes effect April 1, 2014. Medicare tax. Effective January 1, 2013, the Medicare Part A (hospital insurance) tax rate on wages goes up by 0.9% (from 1.45% to 2.3%) on earnings over $200,000 for individual taxpayers and $250,000 for married couples filing jointly. There is also a 3.8% Medicare tax assessment on investment income from interest, dividends, royalties, rents, gross income from a trade or business, and net gain from disposition of property for individuals earning over $200,000 and families earning over $250,000. FSA Contribution Limit. Effective January 1, 2013, contributions to an FSA for medical expenses are limited to $2,500 per year increased annually by the cost-of-living adjustment. Elimination of Tax Deduction for Part D Subsidy Payment. Effective January 1, 2013, the tax deduction for employers that receive Medicare Part D retiree drug subsidy payments is eliminated. Requirement on Employers to Inform Employees of Coverage Options. Employers are to provide to each employee at the time of hiring (or with respect to current employees, not later than March 1, 2013), written notice informing the employee of the existence of an Exchange, including a description of the services provided by such an Exchange, and how the employee may contact the Exchange
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to request assistance; if the employer plan’s share of the total allowed costs of benefits provided under the plan is less than 60% of such costs, the employee may be eligible for a premium tax credit under Section 36B of the Internal Revenue Code of 1986 and a cost-sharing reduction under Section 1402 of the PPACA if the employee purchases a qualified health plan through the Exchange; and if the employee purchases a qualified health plan through the Exchange, the employee will lose the employer contribution (if any) to any health benefits plan offered by the employer and that all or a portion of such contribution may be excludable from income for federal income tax purposes.

2014
Individual Mandate. U.S. citizens and legal residents will be required to have qualifying health coverage beginning in 2014. Those who do not have coverage will be required to pay a yearly financial penalty of the greater of $695 per person (up to a maximum of $2,085 per family) or 2.5% of household income, phased in from 2014–2016. There will be exceptions given for financial hardship and religious objections. Employer Play or Pay—The Employer Mandate. Effective in 2014, employers with more than 50 employees that do not offer coverage and have at least one fulltime employee who receives a premium assistance tax credit must pay a fee of $2,000 per full-time employee. The first 30 employees are not counted for assessing the fee. Employers with more than 50 employees that offer coverage but have at least one full-time employee receiving a premium tax credit will pay the lesser of $3,000 for each employee receiving a premium credit or $2,000 for each full-time employee. Employers that offer coverage will be required to provide a voucher to employees with incomes below 400% of the poverty level if their share of the premium cost is between 8% and 9.8% of income to enable them to enroll in a plan in an Exchange and will not be subject to the above penalty. Large Employer Automatic Enrollment Requirement. Effective in 2014, large employers with more than 200 full-time employees that offer coverage will be required to automatically enroll employees in the employer’s lowest cost plan if the employee does not sign up for employer coverage or does not opt out of coverage. Any automatic enrollment program must include adequate notice and the opportunity for an employee to opt out of any coverage. Insurance Exchanges for Individuals and Small Businesses. By 2014, statebased American Health Benefit Exchanges and Small Business Health Options Program (SHOP) Exchanges, administered by a governmental agency or nonprofit organization, are to be operating so that individuals and small businesses with up to 100 employees can purchase qualified coverage. Guaranteed Issue, Renewability, and Rating Variation Requirements. Effective January 1, 2014, insurers will be required to guarantee issue and renewability and allow rating variation based only on age (limited to 3-to-1 ratio), premium rating area, family composition, and tobacco use (limited to 1.5-to-1 ratio) in the individual and the small group market and the Exchanges. Annual Limits. Effective for plan years beginning on or after January 1, 2014, plans and insurers may no longer impose annual dollar limits on coverage.

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Limit on Waiting Periods. Effective for plan years beginning on or after January 1, 2014, insurers and plans must limit any waiting periods for coverage to 90 days. Wellness Incentives. Effective for plan years beginning on or after January 1, 2014, employers may offer employees rewards of up to 30% (increasing to 50%, if appropriate) of the cost of coverage for participating in a wellness program and meeting certain health-related standards. Preexisting Condition Exclusions. The application of preexisting condition exclusions for plan years beginning on or after January 1, 2014, is prohibited. Comprehensive Health Insurance Coverage. Effective for plan years beginning on or after January 1, 2014, a health insurance issuer that offers health insurance coverage in the individual or small group market must ensure that such coverage includes the essential health benefits package that includes at least the following general categories and the items and services covered within the categories: N Ambulatory patient services N Emergency services N Hospitalization N Maternity and newborn care N Mental health and substance use disorder services, including behavioral health treatment N Prescription drugs N Rehabilitative and habilitative services and devices N Laboratory services N Preventive and wellness services and chronic disease management N Pediatric services, including oral and vision care Limits on Cost Sharing and Deductibles. Effective for plan years beginning on or after January 1, 2014, a group health plan may not provide any annual cost sharing in excess of those that apply to HSAs.

2018
Excise Tax on Cadillac Plans. Effective January 1, 2018, an excise tax is imposed on insurers of employer-sponsored health plans with total values that exceed $10,200 for individual coverage and $27,500 for family coverage.

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#2 FMLA Paid Leave Initiatives and the In Loco Parentis Rule
Paid Leave Initiatives
Since 2007, a growing number of states and at least one city have passed laws to allow employees to have or use paid leave for family and medical needs. For example: N California has become the first state to provide paid time off for workers to provide care for a child, spouse, parent, or domestic partner with a serious health condition, or to bond with a new child (newborn, adopted, or foster care child). N The District of Columbia entitles employees covered by the District Family and Medical Leave Act to paid sick and “safe” leave for use under certain circumstances. N Maryland law requires that employers with 15 or more employees that provide paid leave allow employees to use their paid leave (sick, vacation, or compensatory time) for the illness of an immediate family member. N Washington state has passed a law (currently scheduled to become effective in October 2012) requiring paid family leave, administered under a state-run insurance program. Under the law, employees are entitled to up to 5 weeks’ paid family leave because of the birth of a child, in order to care for the child, or because of the placement of a child with the employee for adoption. N New Jersey provides eligible employees with up to 6 weeks of temporary disability benefits while taking leave under the state family leave law or the federal FMLA to care for a family member with a serious health condition or to care for a newborn or newly adopted child during the first 12 months following birth or placement for adoption.

N The city of San Francisco approved a ballot measure that requires employers to provide paid sick leave to employees in the city. State-mandated paid leave provisions are gaining popularity. As a result, employers should confirm the status of their state leave laws to determine if any paid leave provisions exist, and ensure that their policies and practices take both state and federal leave laws into account.

The In Loco Parentis Rule
In its first Administrator’s Interpretation addressing the Family and Medical Leave Act (FMLA), the U.S. Department of Labor (DOL) discussed the issue of nontraditional families and the in loco parentis qualification under the federal law. It is a fact of life that children today might have more than two parents, fewer than two parents, parents of the same gender, and any variety of other parental arrangements. These “nontraditional” family units have created confusion for some

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employers when it comes to determining eligibility for family leave, particularly in the absence of a legal or biological parent-child relationship. In response, DOL clarified the definition of the parental relationship under the FMLA. DOL’s clarification leaves no doubt that all families—including those in the lesbian/gay/bisexual/transgender community—are protected by the family leave laws.

Family Leave Rights
Under the FMLA, an eligible employee can take a job-protected, unpaid leave of absence for up to a total of 12 workweeks in a 12-month period for: N The birth or care of a newborn N The placement of a child for adoption or foster care N The care of a child with a serious health condition Covered children include the child of a person standing in loco parentis to that child. The FMLA does not require a legal or biological relationship with the child.

Who Stands in Loco Parentis?
So which employees who don’t have a legal or biological relationship with a child are nonetheless entitled to family leave related to that child? According to the recent DOL Administrator’s Interpretation, the FMLA regulations define the term “in loco parentis” to include those individuals with day-to-day responsibilities to care for and financially support a child (DOL Administrator’s Interpretation No. 2010-3). The interpretation explains, however, that the regulations don’t require an employee who intends to assume parental responsibilities to establish that he or she provides both day-to-day care and financial support for that child to stand. For example, an employee who provides day-to-day care for an unmarried partner’s child, but who doesn’t financially support the child, would be entitled to take leave to care for that child in the case of a serious health condition. Employers should apply the same standard to requests for leave for the birth of a child and to bond with a child within the first 12 months after birth or placement. The fact that a child has a biological parent in the home, or has both a mother and a father, does not mean the child can’t also be the child of an employee without a legal or biological relationship with the child for leave purposes. A child of divorce, for example, could have four parents—the biological parents and the stepparents. Each of those parents would have equal rights to take leave to care for the child; the FMLA does not limit the number of parents a child can have for leave purposes.

Examples of In Loco Parentis Relationships
DOL has provided the following examples of employees who would be entitled to family leave by virtue of standing in loco parentis to children: N An uncle who takes care of his young niece and nephew because their single parent is on active military duty N An aunt who assumes responsibility for raising a child after the death of the child’s parents

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N A grandmother who assumes responsibility for her grandchild because her own child is incapable of providing care N An employee who intends to share parenting responsibilities with his or her same-sex partner However, an employee who takes care of a child while that child’s parents are on vacation wouldn’t be considered in loco parentis or eligible for leave.

How to Handle Child-Related Leave Requests
Whether an employee stands in loco parentis to a child—and thus is entitled to family leave—will depend on the particular facts and circumstances.

Fact Sheet
In order to provide further information on the use of in loco parentis relationships under the FMLA, DOL issued a helpful fact sheet,“FMLA Leave to Care for a Parent with a Serious Health Condition on the Basis of an In Loco Parentis Relationship” (Fact Sheet #28C), which contains examples of situations in which FMLA leave to care for a parent may be based on an in loco parentis relationship. Those situations include: N An employee may take leave to care for his aunt with a serious health condition, if the aunt was responsible for his day-to-day care when he was a child. N An employee may take leave to care for her grandmother with a serious health condition if the grandmother assumed responsibility for raising the employee after the death of her parents when the employee was a child. N An employee who was raised by same-sex parents, only one of whom has a biological or legal connection with the employee, may take leave to care for the nonadoptive or nonbiological parent on the basis of an in loco parentis relationship. According to DOL, unless an in loco parentis relationship existed when the employee was a child, an employee is not entitled to take FMLA leave to care for a grandparent, an aunt, or another noncovered relative with a serious health condition. Under the FMLA, persons who are in loco parentis include those with day-to-day responsibilities to care for or financially support a child. Some factors to be considered in determining in loco parentis status include: N The age of the child; N The degree to which the child is dependent on the person; N The amount of financial support, if any, provided; and N The extent to which duties commonly associated with parenthood are exercised.

Documentation of an In Loco Parentis Relationship
DOL’s fact sheet clarifies that an employer’s right to documentation of family relationship is the same for an employee who asserts the need to care for an individual who stood in loco parentis to the employee as it is for a biological, adoptive,
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step, or foster parent. Such documentation may take the form of a simple statement asserting the relationship. For an employee seeking leave to care for an individual who stood in loco parentis to the employee, such statement may include, for example, the name of the individual and a statement of the individual’s in loco parentis relationship to the employee when the employee was a child. An employee should provide sufficient information to make the employer aware that the individual in need of care stood in loco parentis to the employee when the employee was a “son or daughter” (29 CFR Section 825.122).

In Loco Parentis Status and Other FMLA Requirements
DOL makes clear that in loco parentis status under the FMLA does not change the law’s other requirements, such as those regarding coverage, eligibility, and qualifying reasons for leave. All requirements must be met for FMLA protections to apply. An employee asserting a right to FMLA leave to care for a parent who stood in loco parentis to the employee may be required to provide notice of the need for leave and to submit medical certification of a serious health condition consistent with the FMLA regulations.

#3 Ethics
Workplace ethics is a standard of acceptable behavior on the job. It is a set of rules by which to judge decisions and conduct in the workplace. Many corporate leaders who fail to act ethically have been prosecuted and incarcerated, and the U.S. Congress has legislated significant changes in financial reporting and other laws to enforce ethical behavior. The Sarbanes-Oxley Act of 2002 (SOX) and the Federal Sentencing Guidelines have placed strict legal requirements on covered employers. Now, the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act) creates new whistleblower protections and expands those in existing law. Making ethical choices on the job, even for the ethically minded, is not always easy. There may be many reasons that drive people to cross the line and act unethically. Here are a few examples: N Conflicts of interest force employees to choose between self-interest and the interests of co-workers, the department, or the organization. Sometimes the choice is between the interests of a customer and the interests of the organization, or between the community and the organization. N Sometimes it is hard to draw a line between personal and business relationships. Employees forge friendships with co-workers, yet may have to make professional choices that do not seem very friendly. For example, if a co-worker does something wrong, an employee may have to report the situation. If a customer with whom an employee has a good relationship tries to use the relationship in some unethical way, the employee is in a difficult situation.

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N Massaging the truth, telling “little white lies,” and failing to tell the whole story can all have an effect on the outcome of a situation. N Confidential information is exactly that—confidential and privileged. Ethically, employees cannot use any confidential business information for self-gain or pass along such information to benefit friends or family, whether that information is about the organization or its customers. N Laws and regulations are another problem area. There are many confusing laws. Even if an employee understands the law, he or she may not agree with it. It can be tempting to cut corners or forget about the details. N Pressure to succeed, pressure to get ahead, pressure to meet deadlines and expectations, and pressure from co-workers, bosses, customers, or vendors to engage in unethical activities or at least look the other way can drive people to do things they would not normally do. N Some people make unethical choices because they are not sure about what really is the right thing to do. Ethical problems are often complicated, and the proper choice may be far from obvious. N Self interest, personal gain, ambition, and downright greed are at the bottom of a lot of unethical activity in business. Also, there are those who simply never learned or do not care about ethical values. Because such individuals have no personal ethical values, they do not have any basis for understanding or applying ethical standards in business. N Misguided loyalty can cause employees to lie because they think that in doing so, they are being loyal to the organization or to their bosses. The Dodd-Frank Act provides significant financial incentives for employees to disclose to government officials what they believe may be illegal conduct by their employers. Below is a summary of the laws affected by the Dodd-Frank Act’s whistleblower provisions. Sarbanes-Oxley Act of 2002. SOX prohibits retaliation against employees of publicly traded companies who report acts of mail, wire, bank, or securities fraud; fraud against shareholders; or violations of any rule or regulation of the Securities and Exchange Commission (SEC) to their supervisors or other appropriate officials within their companies or federal officials with the authority to remedy the wrongdoing. The law also prohibits retaliation against employees who assist in any investigation of such violations or participate in any proceeding related to an alleged violation of these laws (18 USC Sec. 1514A). Employees claiming retaliation under SOX must exhaust administrative remedies before bringing an action in court. Complaints are handled by DOL. If DOL does not issue a ruling within 180 days, the employee may seek a trial in federal court. To assert a claim under SOX, an employee must show that he or she had a goodfaith and objectively reasonable belief that the employer’s conduct was unlawful (Day v. Staples, Inc., 555 F 42 (1st Cir. 2009)). The mere possibility of, or specula.3d tion about, illegal activity is insufficient (Livingston v.Wyeth, 520 F 344 (4th Cir. .3d 2008)). However, it is not necessary that the employer actually was violating the law.

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In addition, an employee need show only that the protected activity was a contributing factor to the retaliatory employment action taken against him or her (Van Asdale v. International Game Technology, No. 07-16597 (9th Cir. 2009)). On the other hand, the employer must show, by clear and convincing evidence, that it would have taken the same adverse action in the absence of protected activity (Collins v. Beazer Homes USA, Inc., 334 F Supp.2d 1365 (N.D. GA 2004)). . SOX and discrimination claims. The 3rd Circuit Court of Appeals (covering Delaware, New Jersey, Pennsylvania, and the U.S.Virgin Islands) has held that an employee who brings an unsuccessful SOX claim is precluded from then suing the employer for employment discrimination based on the same set of facts (Tice v. Bristol-Myers Squibb Co., No. 07-3977 (3d Cir. 2009)). The Dodd-Frank Act clarified some unsettled SOX issues. For example, courts were split on whether SOX grants whistleblowers a right to a jury trial. The Dodd-Frank Act makes clear that jury trials are available under the law. In addition, the DoddFrank Act amends SOX by adding the following provisions: N Nonpublicly traded subsidiaries of publicly traded companies are now covered by SOX. N Nationally recognized statistical ratings organizations are not covered by SOX. N The statute of limitations is extended from 90 days to 180 days. N Predispute arbitration agreements are prohibited under SOX. N Individuals cannot waive their rights or remedies under SOX. Securities and Exchange Commission Act (SEC Act). The Dodd-Frank Act creates new whistleblower protections under the SEC Act. Employees who provide information regarding securities law violations are entitled to between 10% and 30% of monetary sanctions recovered that exceed $1 million. Employers may not retaliate against employees who provide information regarding securities law violations to SEC, assist in the SEC’s judicial or administrative investigations, or make required or protected disclosures under SOX or other laws subject to SEC jurisdiction. Employees claiming retaliation may bring a claim in federal court, and if they prevail, they may be awarded double back pay, attorney’s fees, and other costs. Employees must bring their claim within 6 years of the retaliation, or within 3 years after the employer knew or should have known of the retaliatory conduct; in no case can a claim be made more than 10 years after the retaliation. Note: Practically speaking, this provision gives SOX plaintiffs the opportunity to bring a claim in federal court without first following the administrative procedures required by SOX. Commodity Futures Trading Commission (CFTC). The Dodd-Frank Act creates a whistleblower program to protect employees who provide information related to violations of the Commodity Exchange Act or assist in an investigation or judicial or administrative action based on such information. As with the SEC Act, CFTC whistleblowers are eligible to receive 10% to 30% of any fines recovered by CFTC that exceed $1 million. Also, individuals may bring retaliation claims in federal court. Predispute arbitration agreements are prohibited, as are waivers of rights under the Act. However, unlike the SEC Act, complaints under the CFTC whistleblower provisions must be brought within 2 years of the violation.
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Consumer Financial Protection Bureau. The Dodd-Frank Act creates a Bureau of Consumer Financial Protection and provides whistleblower protections for employees who work in the consumer financial services sector. These employers may not retaliate against an employee “performing tasks related to the offering or provision of a consumer financial product or service” who has: N Provided information to his or her employer, the Bureau, or any local, state, or federal authority relating what the employee reasonably believes to be a violation of one of the consumer financial services laws protected by the Bureau or other Bureau rules N Testified in any proceeding related to enforcement or administration of the Consumer Financial Protection Act of 2010, any of the other laws protected by the Bureau, or Bureau rules N Filed or instituted any proceeding under federal consumer financial law N Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee reasonably believed to be in violation of any law subject to the jurisdiction of or enforced by the Bureau Employees who believe they have been retaliated against for taking any of the actions set forth above may file a complaint with DOL. If, after an investigation, DOL finds in favor of the employee, it will order the employer to take affirmative action to abate the violation. In addition, the employee will be awarded back pay, reinstatement, compensatory damages and, upon request, attorney’s fees up to $1,000. If DOL does not issue a final order within 210 days after the employee filed the complaint, or within 90 days after it has issued a written determination on the claim, the employee may file suit in federal court. As with other whistleblower provisions under the Dodd-Frank Act, employees may not waive their rights under this provision of the Dodd-Frank Act. Also, predispute arbitration agreements are prohibited. False Claims Act. Under the False Claims Act, an individual may bring a court action, known as a qui tam action, against any person who knowingly makes a false claim for payment from the government (31 USC Sec. 3729 et seq.). Employers are prohibited from retaliating against employees who participate in a qui tam action. Employees who prevail on a retaliation claim may be entitled to reinstatement, as well as double back pay, special damages, costs, and attorney’s fees. The Dodd-Frank Act expanded covered individuals to include not only the whistleblower but also “associated others.” It also provides that employees have 3 years from the time of the retaliation to bring a claim.

Best Practice: Ethics, Integrity, Training, Communication Steer Weyerhaeuser to Success
With a long-term, companywide ethics and business conduct program, Weyerhaeuser Company has had an organizational code of ethics in place since 1976 and has received numerous awards for its efforts. The latest honor was being named to the “World’s Most Ethical Companies” list by the Ethisphere Institute for the second consecutive year in 2010.
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Weyerhaeuser Company (http://www.weyerhaeuser.com), an international forest products company, began operations in 1900. The organization grows and harvests trees, builds homes, and makes a range of forest products. Weyerhaeuser manages its timberland on a sustainable basis in compliance with internationally recognized forestry standards, and at the end of 2009, employed approximately 14,900 employees in 10 countries and in more than 70 primary locations. Melissa Morris, director of Ethics and Business Conduct, says,“A successful, wellrounded ethics and business conduct program requires a culture of integrity, and it’s more than having a code of ethics. For over 100 years, we have had a reputation of conducting business honestly and with integrity. Our reputation is really due to our heritage and to our employees. Protecting our reputation has been essential to our success.”

The Ethics Code
The Weyerhaeuser Code of Ethics, a comprehensive, 26-page document shared with all employees in a booklet, online through the employee intranet, and discussed during new employee orientation, was most recently updated in April 2010 and can be found at http://tinyurl.com/2du8lz9. The overview of the Code highlights the fact that not only are employees expected to act with integrity and conduct business and themselves in a way that protects the company’s reputation for fairness and honesty, but they are also expected to demonstrate ethical leadership by raising questions and concerns about the right thing to do. Every 3 to 4 years, Weyerhaeuser’s Code is updated through partnering with appropriate internal subject matter experts, says Morris.“For example, I would involve our intellectual property law attorney in changes to the intellectual property section.” In addition, a “series of leaders that includes the president and chief executive officer and the board of directors reviews all changes to the Code,” she explains. Weyerhaeuser’s culture of integrity is maintained through the leadership making principled and ethical decisions and is also employee driven, Morris notes.“An example is that our leaders set the tone by discussing ethical business conduct and role modeling. Many managers conduct leader-led ethics training so they’re role modeling at the same time that they’re educating employees about ethics and how it applies to their jobs.” She comments that the Code provides a framework for employees to guide their decision making, but education and ongoing communication also provide essential elements to making ethics and integrity the principles by which Weyerhaeuser employees function. The education starts during new employee orientation, which includes a module on ethics.

Training, Communication
All employees are expected to stay current with the code of ethics and business conduct by participating in leader-led (with a PowerPoint® presentation) or online training that includes ethical dilemmas and requires employees to make decisions through quiz questions. Companywide ethics training is mandatory. This year, for

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example, 85% of employees have already completed the training on the updated code of ethics, and 100% completion is expected by year-end, notes Morris. Ongoing communication regarding ethics is handled through the online employee newsletter, the ethics website on the employee intranet, and through other communications channels. In addition, managers may use other internally developed ethical dilemmas in supplemental discussions with employees, explains Morris. Morris says that when employees have ethical concerns, they may report them locally, for example, to their managers, a plant manager, or the HR function.

Best Practice: Yahoo! Makes Ethics Training Entertaining
Learning about corporate codes of ethics and compliance issues doesn’t have to be boring for employees. In fact, it can be entertaining, interactive, and online. Yahoo!, headquartered in Sunnyvale, California, provides the proof. Dave Farrell, vice president and chief compliance and ethics officer, explains that 2 years ago, when he was relatively new at Yahoo! (http://info.yahoo.com), he interviewed senior leaders and executives to determine what should be included in a code of ethics and compliance program. The Code of Ethics now reflects Yahoo!’s values and unique, international work culture. The tagline added to the code is “Winning with Integrity.”The code is comprehensive and available for viewing at http://yhoo.client.shareholder.com/documents.cfm. (It is the second listing under the “Documents” heading.) Next came the challenge of presenting the Code of Ethics to the approximately 14,000 employees in a way that would be easily accessible and entertaining, and provide them with a good understanding of the new code and how to apply it. The process that Yahoo! went through to create the training program, On the Road With the Code, involved internal collaboration with the Ethics and Compliance staff, Marketing and Public Relations, and HR and Finance, and included an external partner, The Network, explains Farrell.“The Network (www.tnwinc.com/ index.aspx), a provider of incident-management solutions to help clients foster an ethical culture, helped us take the vision that we had and helped us to expand it, improve it, and execute it. “We ran focus groups of employees early on to talk about what employees liked in an online training program, what would be effective, and what their experience was [with codes of ethics] so we made sure we were on the right track,” notes Farrell.“We also had to make sure that this training program was not U.S.-centric (i.e., English-centric) and make it relevant from a global perspective. We had it translated into five or six languages so that employees taking it anywhere in the world would feel an effort had really been made to address them and have it resonate with them.” As the training program was being created, the focus groups provided feedback at different stages so the program could be made even better, notes Farrell.

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The Learning Modules
The learning modules comprising On the Road With the Code include Conflicts of Interest, Anticorruption, Export Controls, General Ethics and Integrity, and Insider Trading. “As you [an employee] take the course, you learn different subject areas of ethics and compliance and at the end of each one are given several different scenarios where the user interacts with the training program,” says Farrell.“For example, the Conflicts of Interest module uses a game show approach where the Yahoos [employees] play a game and decide whether a conflict of interest does exist or doesn’t exist.” Blending eye-catching design elements and customized,Yahoo!-specific content, the company’s Code of Ethics was transformed into a ready resource for employees that began with a message from the CEO (as explained by The Network’s white paper about the creation of the program). The training is mandatory. Every Yahoo! employee went through the program, and new employees must go through the program within 60 days of their hire, says Farrell. The Yahoos provided positive feedback about the training in their evaluations of it, and inquiries and questions regarding ethics concerns increased as each group of Yahoos participated in the program, he adds.

Other Ethics Resources
The online training program is housed on a website available through Yahoo!’s intranet, which includes resources such as additional training on ethics topics, related policies, contact information, and the ability for Yahoos to ask questions and raise concerns about practices that may be violating the Yahoo! Code of Ethics, notes Farrell. Concerns may also be reported via a telephone hotline. Farrell explains that in order to keep ethics and compliance on Yahoos’ minds, new animated vignettes, called Spotlights, put together once a month with Marketing Communications, highlight scenarios touching on a topic area of On the Road With the Code and are made available on the employee intranet.

Creating Your Program
“You must have executive management commitment to do something like this,” says Farrell.“We were fortunate to have that. The CEO and board [of directors] were absolutely supportive of us doing this, getting it done, funding it and making it mandatory.Your ethics and compliance program is only as good as the commitment and engagement of [the leaders] at the top.” Farrell further suggests that you “do exactly what we did—spend a lot of effort at the front end to solicit input and feedback from employees throughout the organization. Bounce your great ideas off your employees [audience] to make sure you are on the right track.” He cautions that you may have one impression of what will really resonate with employees, but you need to make sure you’re meeting their needs and expectations in terms of quality, approach, and content, and also that the content is relevant to your unique industry.

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#4 Social Networking and Blogging
BLR’s HR Concerns for 2011 survey asked respondents,“Have you caught any of your employees negatively blogging about your company or mentioning it in an inappropriate manner on a social networking site?” One quarter of the HR professionals who answered have faced this problem with an employee.

Social Networking
Recently, employers have recognized that social networking sites such as Twitter, Facebook, LinkedIn, and MySpace can be useful marketing and recruiting tools. Likewise, employees have increasingly been utilizing social networking sites for a variety of uses, both personal and professional. Although these sites can be beneficial, their use can also have risks. Discrimination. Some employers review social networking sites as a method of screening applicants. Generally, once an applicant or employee posts something on a public domain, such as a social networking site, an employer is free to view it. However, by viewing candidate profiles, employers may learn more information (e.g., race, disability, age, religion, family/marital status, sexual orientation) than the employer could legally ask about directly. Therefore, it is critical that employers base all interviewing and hiring decisions on job-related criteria. Employers must also be aware that everything they find on a social networking site may not be current, accurate, or even placed there by the prospective applicant, as users of these sites sometimes “pretext” or pretend to be someone else. Background check laws. The federal Fair Credit Reporting Act (FCRA) requires employers to obtain applicants’ consent when a third party conducts a background investigation. Some states also have their own background check laws. It is unclear whether these laws would require consent from an applicant before an employer or third party conducted an Internet search as part of a background check. However, even if not legally required to do so, employers should consider getting consent so that applicants are on notice that the information they post on social networking sites may be reviewed by the employer. Monitoring employee use of social networking sites. There is little case law addressing the monitoring by employers of employees’ social networking posts. However, the few cases in this area suggest that courts will be reluctant to uphold an invasion of privacy claim (whether based on the federal constitution or state common law) when an employee voluntarily posts information on a public site. But the outcome might be different if employees set up an invitation-only site and have an expectation that only invited users will be able to read their posts. For example, a federal district court in New Jersey held that employees could proceed with their invasion of privacy claim when they were fired after uninvited company managers accessed their invitation-only Web discussions of workplace grievances (Pietrylo v. Hillstone Restaurant Group, No. 06-5754 (D. N.J. 2008)). The court also permitted the employees to proceed with their claim that the managers violated the federal SCA and similar state law. The employees argued that one of
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the managers pressured an employee to provide him with her password to the site. The court reasoned that if proven, this would show a violation of the Stored Communications Act (SCA) and state law, because authorization to view the site was not “freely given.” In contrast, a California state court rejected an invasion of privacy claim by a college student who posted an essay highly critical of her home town on a social networking site (Moreno v. Hanford Sentinel, 172 Cal. App. 4th 1125 (2009)). The student’s former school principal forwarded the post to a local newspaper that published it. The student and her family were then subject to hostile treatment, including some death threats from community members. The student claimed that the school principal invaded her privacy by sending the post to the newspaper. The court rejected her claim, noting that she posted the essay on a social networking site available to anyone with Internet access. The court did, however, permit the student to pursue a claim of intentional infliction of emotional distress against the principal. On the basis of these cases, employers should be aware that while it may not be an invasion of privacy to access an employee’s public social networking site, actions taken based on the information on the site may lead to liability under other legal theories. Moreover, coercing an employee to provide access to a private site may be an invasion of privacy, as well as a violation of federal and state law. Employers should also keep in mind that some states have laws prohibiting employers from taking adverse action against an employee for engaging in legal activities while off duty. An employer in a state with such a law may face liability if it takes adverse action against an employee because of the employee’s legal activities shown on a social networking site. Practice tip: Because this area of the law is in its infancy, employers should consult with legal counsel before taking adverse action against an employee because of his or her posts on a social networking site. Right to organize. Another possible concern for employers that monitor employee use of social networking sites is the National Labor Relations Act (NLRA), which protects employees’ right to engage in concerted activity regarding terms and conditions of employment. The NLRA applies to both unionized and nonunionized workplaces. If employees use social networking sites to discuss employment conditions, employers may be liable for an unfair labor practice if they appear to be interfering with those discussions. Employees’ use of social networking sites. Employers may find that employees use social networking sites to post positive information about their organization’s products or work culture. Unfortunately, employee posts can also be detrimental to employers. Therefore, employers should have policies in place setting forth their expectations regarding employee’s social networking as it relates to the employer. Such policies should prohibit: N Harassment of co-workers or customers; N Interference or disruption of work because of social networking; N Exposing trade secrets or other proprietary company information; and N Disparaging comments about the company or its employees.

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It is also a good idea to train employees on the proper and improper use of social networking at or relating to work.

Blogging
A blog (short for “Web log”) is an online journal where the writer posts his or her opinions on the Internet about any topic—including the workplace. Blogging has grown quickly in recent years both with regard to the number of individuals reading and posting to blogs and the number of blogs available on the Internet. There have been a number of highly publicized cases in which employees were disciplined or fired for disclosing confidential or proprietary information about their companies and/or describing their employers in an unflattering light. Legal considerations. When addressing blogging by employees, employers should be aware of legal issues such as the employee’s right to free speech and free association and the right to be free from restriction on off-duty activities. Many states prohibit employers from taking action against employees who engage in lawful off-duty activities. However, blogs can also be used to harass or defame co-workers or others. If the company allows the employee to use company facilities to create or maintain the blog, the company may be liable for the illegal actions of the employee. In order to prevent inappropriate blogging, employers should consider adding a blogging provision to any existing Internet or electronic communication policy or creating a separate policy on blogging.

Blogging Policy
Issues and questions to consider when formulating a blogging policy include: N Confidentiality. Describe what obligations employees have to maintain the company’s and customers’ proprietary information in confidence (including existing policies, contracts, and laws regulating confidential information). N Respect of dignity. Include a statement that the blogger should respect the dignity of others and refrain from posting personal information about or pictures of co-workers, supervisors, or managers. N Competitors. May employees use a blog to tout competitors? Criticize competitors? Disparage competitors? Defame competitors? N Identification. Are employees permitted to reference the company in their blog entries? If yes, employees should be asked to include a disclaimer stating that the blog posting represents their personal opinions and is not the official position of the company. N Business developments/ideas. If an employer requires employees to disclose all business developments or ideas that are within the scope of the company’s business, include such a statement in the blog policy. N Media. May employees comment to the media about the company’s business or about customers? May they publicly criticize customers? Vendors? Co-workers? Supervisors or managers? The company?

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N Facilities. May employees use company facilities to develop, design, and maintain their websites/blogs? Are employees permitted to read and post messages to blogs during work time or from the workplace? N Monitoring. State that the company monitors its facilities (Internet, computer systems, networks, etc.) for compliance with this policy and monitors the use of its name and trademarks on the Internet. N Deleting. State that the company will delete from its website, files, computer systems, and storage media any unauthorized materials it may find, at any time, and without notice. N Correlate with other policies. Include references to related policies such as computer and Internet use policies, confidentiality, duty of loyalty, media, harassment, proprietary rights, copyrights, and the like. N Discipline. What discipline will be imposed if the employee violates the policy? Generally, employers should reserve the right to decide the appropriate level of discipline in any given circumstance, up to and including the immediate termination of employment.

FTC Guidelines on Testimonials and Endorsements
The Federal Trade Commission (FTC) has issued guidelines requiring individuals who are paid to provide testimonials and endorsements on social networking sites to reveal that they are being compensated (16 CFR 255.5). These guidelines could affect employers if their employees tout a product or service on a social networking site or blog without mentioning the employer/employee relationship. The FTC has stated that when determining whether to initiate an enforcement action, it will consider whether the employer had policies and practices relating to employee participation in social media. In the past, the FTC has brought law enforcement actions against companies whose failure to establish or maintain appropriate internal procedures resulted in consumer injury. However, it is unlikely to bring an enforcement action against a company for the actions of a single “rogue” employee who violated an established company policy. Practice tip: In addition to the tips above, employers should make sure that their blogging and/or social networking policies contain provisions requiring employees to reveal their employment status whenever they discuss company products or services using these media. Companies should also enforce these policies as a matter of good business practice and to ensure their credibility in case the FTC reviews a situation.

Best Practice: Look to Social Media for Disaster Preparedness Updates
Certain federal departments and agencies are utilizing Twitter and Facebook to proactively reach out to U.S. citizens instead of passively waiting for people to visit their websites.

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Ready.gov
One great resource for businesses and individual citizens for advance planning of all types of emergencies is www.ready.gov, available through the U.S. Department of Homeland Security. The introductory page for businesses is www.ready.gov/ business/index.html. Several emergency situations are listed, along with detailed information regarding what businesses should do to prepare for each and what to do if they occur: among these are biological threats, blackouts, chemical threats, earthquakes, explosions, fires, floods, and hurricanes. The introductory page for individuals is www.ready.gov/america/beinformed/ index.html. This section provides details regarding creating a family emergency plan, what to include in a basic emergency kit, and what to keep in a first-aid kit. The first-aid kit information is valuable for everyday life, not just disasters. (For example, the site advises that you keep eye wash solution in a kit at your disposal in order to flush your eyes or to use it as a general decontaminant.) For both individuals and businesses, there are many downloadable resources (in PDF format) that are available at no cost via the above links. Ready.gov is now on Twitter, so you can sign up to receive Tweets (posts) in the form of emergency messages and tips to help prepare for emergencies. The Twitter ID is “readydotgov” and you can sign up at no cost for this service at www.twitter .com. Just key “readydotgov” into the search window to access recent Tweets. An example of one emergency Tweet from “readydotgov,” in May was an alert to readers about a tornado watch in portions of south-central Kansas and central and western Oklahoma, providing a link for more information.

The CDC
The CDC website has a section on Emergency Preparedness and Response including public health emergencies, natural disasters, and severe weather at www.bt .cdc.gov. From the main page, click on the “Natural Disasters and Severe Weather” button to access information about specific disasters, such as hurricanes. Under the hurricanes section, you can get information under “Prepare Before the Storm” about getting supplies, making a plan, and learning about hurricane recovery. For example, one of the first things that the CDC recommends when an individual or a business is beginning to create a hurricane preparation plan is to learn about your community’s emergency plans, warning signals, evacuation routes, and locations of emergency shelters. Even if you already have this information, it is a good idea to check it annually as many communities change the locations of shelters and sometimes even evacuation routes due to changing population sizes and community needs. The CDC also has plenty of information for your employees to begin planning for weather disasters that could affect their families’ health and well-being. The CDC also shares emergency alert tweets on Twitter using the following Twitter ID, “CDCemergency.”

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FEMA
The Federal Emergency Management Agency, known as FEMA, is also a division of the U.S. Department of Homeland Security. FEMA is the agency that assists individuals and state and local emergency management agencies when a major emergency occurs.

#5 Corporate Social Responsibility and the Green Movement
5 Reasons Why You Need a Green Program
You know that green programs are good for business, so why is it so hard to get upper management buy-in? Maybe it’s because they don’t fully understand all of the benefits of a green program. Here are some convincing reasons from a recent BLR® audio conference to help you pitch starting a green program at your company. 1. It’s easy! Whether it’s a factory, plant, or general office space, opportunities to be green are in every workplace.You can easily train workers to save energy, recycle, and reduce waste at little cost to your company. 2. Your competitors probably have one. In a recent World Economic Forum survey, more than half of the companies said they produce a sustainability report separate from their annual reports. If you want to stay competitive or gain an advantage, a green program will help you do that. 3. Your workers want it. Most employees are interested in how their company is practicing corporate social responsibility.This is a great opportunity for you to shine in the eyes of your workers and be an employer of choice because most employees link positive environmental and social activities to brand reputation. 4. It’ll save money. It’s simple, cutting energy costs and waste will save your company money. Simple tasks like printing on both sides of paper, turning off computers and lights during nonworking hours, and conducting water audits can add up to a huge savings for your company. 5. It’ll keep you ahead of the regs. If you play in the global market you’ll have to follow several European directives like Waste Electrical and Electronic Equipment (WEEE), Restriction of Hazardous Substances (ROHS), and Registration, Evaluation, and Authorization of Chemicals (REACH).

Going Green: Not Just Good Deeds … Good Business
With climate change and environmental pollution topping industry news, corporations are finding that jumping on the sustainability train benefits their bottom line.

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But what is sustainability? The Brundtland Commission issued the most commonly recognized definition of sustainability in its 1987 report, Our Common Future: “meeting the needs of the present generation without compromising the ability of future generations to meet their own needs.” Sustainability is the premier buzz word and one of the significant global issues facing business today. And what exactly does that mean to you as a business owner? Sustainability is a proactive approach on the part of a company for managing natural resources and reducing environmental and social impacts that ensures viability and enhances reputation with stakeholders (employees, customers, and suppliers), while not compromising profitability.

Why Go Green?
The answer, as always, lies in the bottom line. Some of the benefits of having a sustainable business or going green include: N Sets a positive example for stakeholders N Boosts morale, leads to recruiting and retaining the best employees N Builds customer loyalty N Positions you as supplier of choice N Sets your operations beyond compliance and reduces your risks N Benefits the community and the environment Of course, corporate responsibility and sustainable business practices can encourage creativity and innovation. Although every organization has a different vision of how sustainability fits into their business model, balancing business operations with social, economic, and environmental responsibilities may determine business performance in the future. As sustainability progresses from disjointed projects to a philosophy integrated at all business levels, companies are finding that sustainability is good for business and has a positive impact on the bottom line. Corporations are also discovering that demonstrating a commitment to sustainability offers a competitive advantage—nationally and globally—and it makes good business sense.

Baxter’s Reasons for Sustainability
Baxter International, a multinational healthcare products manufacturer, is a company that has focused on sustainability for many years. At a NAEM Forum, Elaine Salewske, senior manager, Corporate Communications, offered these reasons why Baxter International believes sustainability makes good business sense: N It differentiates Baxter from other companies. N It drives efficiency and creates a competitive advantage. N It helps identify and manage risk. N It enhances the company’s reputation among various stakeholder groups. N It supports the company’s mission of sustaining lives.
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However, in order to fully take advantage of the benefits that a robust sustainability program will create, information must get to the appropriate stakeholders. As a result, more and more companies are producing annual sustainability reports to document their efforts as good corporate citizens and progress toward reducing their environmental footprint. For example, Baxter International produced their first sustainability report in 1999 and, according to Salewske, in addition to providing stakeholders with an overview of company performance, the report allowed Baxter to establish a baseline and demonstrate progress over time, which ultimately helps the company advance its various sustainability programs.

Triple Bottom Line
In the “Age of Corporate Responsibility,” a commitment to sustainability implies a commitment to triple bottom line reporting:“People, Planet, Profit.” In practical terms, this means expanding the traditional reporting framework to take into account environmental and social performance in addition to financial performance. The phrase “triple bottom line” was coined by John Elkington in his 1998 book Cannibals with Forks: The Triple Bottom Line of 21st Century Business. It is a serious and increasingly recognized concept, and companies are embracing it as a way to demonstrate commitment to sustainable business growth. In the past, business decisions considered only profit—but now the triple bottom line recognizes that without happy, healthy people, a cleaner environment to sustain those people, and natural resources to offer supplies, a business is simply unsustainable in the long run. Triple bottom line is an ongoing process as companies continually adapt to the changing marketplace and the environment. Triple bottom line legislation is under consideration in some U.S. states, including Minnesota and Oregon. A number of corporations have advocated for sustainable corporation laws that grant triple bottom line or sustainable businesses benefits such as tax breaks and low-priority routine inspections.

Challenges of ‘Going Green’
Moving toward sustainable business practices can present challenges in balancing economic interests against social and environmental concerns. The following concerns can easily be curbed if your focus remains on demonstrating commitment— especially from top management. N Get employees on board and committed. If your employees see a real commitment and enthusiasm through communication, it will trickle down. Encourage input so they can see themselves as valuable team players. N Secure time and money. Sustainable practices need to be taken seriously by devoting time to define objectives and set goals.You must also invest in steps to meet your goals. N Create a workable program to achieve measurable results. Communicate objectives with stakeholders.

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N Maintain, improve, and adapt a green program with a forward-looking focus. You must take a closed-loop approach to obtain and sustain maximum benefits—this enables continuous improvement.

Getting Started
There is no one-size-fits-all solution to developing a green policy or sustainable workplace.You must work with what you have and remember that your employees are your best resource. Keep your focus on the triple bottom line. 1. Start small—target a few areas for improvement and commit to those. 2. Participate in business partnerships to share best practices. 3. Focus on ideas that require minimal capital investment. 4. Involve all employees—motivation is key to a successful green program. Tip: Start with an energy-saving or conservation plan—it is easy to implement, easily measured, and may present immediate benefits. Your sustainability program should be built on the “Plan, Do, Check, Act” approach, as described here, for continual improvement. This follows the ISO 14001 and ISO 9100 management systems model.

Step 1—Plan
First, create a “green team” and appoint a respected person with project management experience as coordinator of the team. Members of the team should come from all levels and areas of your company and must include one person from top management. Next, assess your current situation to determine your energy consumption, and identify how and where energy and materials are being wasted or usage reduced. N Distribute employee questionnaire—no more than 8 questions. N Contact suppliers for exact costs. N Consider variations in energy use. N Conduct an energy audit. Once you’ve assessed your current situation, you will know the direction you should take, and you can set your goals. Then, determine what systems to use to disseminate information with stakeholders (employees, customers, investors, etc.) —e-mail, training presentations, posters, or word of mouth. Secure a budget for promotional materials and possible upgrades or for the purchase of energy-efficient technologies. Create a timeframe to meet your goals. Be realistic about what is possible in a given timeframe. Finally, create an incentive program to encourage proactive involvement by employees.

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Step 2—Do
After you define roles, responsibilities, and authority among members of your green team, you can implement your new program. Some companies have a special launch event. The program should be integrated into all areas of your business, including new employee orientation. Develop training materials for your employees. Be sure to communicate your progress internally and externally—and be transparent about it.

Step 3—Check
To see the results of your program, you must monitor and measure progress— perform audits. If you find areas that need improvement, identify corrective and preventive actions. Be sure to document everything so you are able to communicate results and findings to top management for review.

Step 4—Act
After upper management has reviewed your progress, consider any recommendations and act on needed improvements. In order to fully take advantage of the benefits that a robust sustainability program will create, information must get to the appropriate stakeholders. A sustainability report is a great way to communicate progress and demonstrate commitment to investors. And remember also to convey results to employees to keep motivation up on all levels.

Your Outlook
If you take corporate responsibility and sustainable business seriously—People, Planet, Profit—your company can improve its operational efficiency and reputation among stakeholders, while reducing risk exposure and encouraging loyalty and innovation. Overall, employees, customers, regulators, and joint venture partners will see your company as a good investment and a company of choice.

Best Practice: BLR’s Green Team Helps Employees Be Enviro Conscious
Empowered staff with a special interest can start the ball rolling for an entire organization. That’s exactly what happened with an environmental sustainability initiative at Business & Legal Resources, Inc. (www.blr.com), headquartered in Old Saybrook, Connecticut. BLR, the publisher of this special report, is a provider of employment, compensation, safety, and environmental compliance solutions and has 150 employees.

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Ana Ellington, senior editor, and Amanda Czepiel, J.D., legal editor, report that because they both have a strong interest in pollution prevention and sustainability, they set about together creating presentations for employees about reducing waste and increasing environmental sustainability. Their first presentation regarded how to achieve a paperless office. These employee training presentations, the beginning of the sustainability efforts at BLR, were noticed by senior executives, Chief Operations Officer Brian Gurnham and Managing Editor—Environmental Clare Condon, who immediately supported Ellington and Czepiel’s efforts and provided a small budget for the establishment of a companywide green program.

The Green Team
The Green Team was formed with seven employees who meet every 2 weeks, with smaller subsets of the team consisting of two or three employees to work on specific tasks and projects, explains Czepiel. The main focus of the Green Team is to increase awareness among staff members and educate them so that employees glean knowledge that will help save the environment and money—at home as well as at work, explains Ellington. Of course, the Green Team tries to make their efforts interesting and in many cases, fun as well. One of the Team’s first initiatives was a “Shut It Off” campaign.“We had the challenge of employees not understanding the importance of turning things [equipment and lights] off,” explains Ellington.“And also our company had purchased two new servers, so we had a significant increase in energy use due to that.” Andrea Maturo, HR generalist and also a Green Team member, comments,“We had to work on changing employees’ behaviors to stop and think about turning off the monitors, turning off the lights, and putting the computers on hibernate.” Earth Day in April provided an opportunity for BLR employees to have lunch together out on the patio, with employees supplying their own brown bag lunches and reusable mugs or glasses to enjoy lemonade or iced tea, made by the Green Team and presented in large thermoses instead of disposable containers, explains Ellington. Everything that was served, such as cookies and other dessert items, was presented on reusable platters, she adds. The Green Team was in attendance to answer questions about the Team’s activities, notes Czepiel.

A Green Fair
Maturo took the lead, along with Nancy McAnany, another member of the Green Team and BLR’s purchasing agent, in organizing BLR’s first Green Fair in May, held in a format similar to BLR’s annual employee health fair. The fair included outside vendors that sell energy conservation hybrid vehicles, energy-saving robotic lawnmowers and solar-powered lawnmowers (which zipped around the BLR grounds); two companies that focused on solar energy; Rideworks (www.rideworks.com), an agency that promotes public transportation for commuting and carpooling; electric suppliers that offered discounted power

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rates; an organic lawn care service; and the local gas and electric companies, which offered energy conservation tips and home energy audits, Maturo explains. BLR’s Green Team (which also includes employees Margaret Amore, Linda Costa, and Barbara Mathieu) also put together a booth to educate employees about everything that the Green Team had been doing.

An Environmental Audit
Another effort that the Green Team has worked on is an environmental office audit, says Ellington.“The idea was gleaned from the U.S. Department of Energy. We took the tips that they had and created two different models [a series of questions and a spreadsheet] and found that the spreadsheet was easier to use.” The Green Team conducted the organizationwide audit with input from different departments, comments Ellington. The information gathered creates a baseline so that progress can be tracked in obtaining Energy Star-rated equipment when equipment is replaced. In turn, the results can be reported to employees and upper management, says Czepiel.

Leadership Support Counts
Ellington notes that senior management support and leadership becomes paramount in order for staff to take an organization’s sustainability initiatives seriously. The Green Team also stresses that it’s important to be flexible and rework your programming and communication as necessary. Ellington, Czepiel, and Maturo agree that keeping the initiatives in front of your employees is also extremely important. BLR does that through its blogs posted at least twice a week, e-mails to staff and periodic events and training sessions. The blog, also available for the public to see, provides updates and resources for environmental sustainability efforts. To see it, visit www.blrgreenteam.com.

10 Tips to Go Green—And Save Some Green!
“With growing pressure to go ‘green,’ companies that are prepared to demonstrate that they operate according to sustainable policies are proving to have a competitive edge, a better reputation, higher retention of good employees, and decreased costs, says BLR Senior Editor Ana Ellington, who heads the BLR Green Team. 1. Shut off any lights you are not using. 2. Use compact fluorescent lightbulbs. They use less than 25% of the electricity of standard bulbs and last 10 times longer. 3. Seal drafty doors, windows, and holes around plumbing fixtures to keep out winter cold and summer heat. 4. Use the energy-savings setting on all appliances, particularly air conditioners and refrigerators, as well as on office machines such as copiers. 5. Unplug computers, monitors, modems, cable boxes, and televisions when not in use. Better yet, plug them into power strips so it’s one easy switch to turn them all off and on.

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6. Unplug cell phone and PDA chargers when not in use. They use electricity even when they aren’t charging! 7. Consider Energy Star®–qualified appliances, which use 10% to 50% less electricity than standard models. A list of qualified products is available at www.energystar.gov. 8. Use green power.“Green power” is defined as electricity that is generated from environmentally preferable, renewable sources such as solar, wind, geothermal, biogas, biomass, and low-impact hydro. 9. Switch to paperless bank statements and bill paying to save millions of trees and billions of gallons of water—plus the cost of stamps. 10. Drive less! Walk, bike, or take public transportation.

#6 Increasing Investigations
Equal Employment Opportunity Commission (EEOC)
Federal legislation has been enacted to expand the compliance efforts of federal agencies in 2010 and beyond. When asked,“Do you feel that the increasing investigations by the IRS, DOL, and Equal Employment Opportunity Commission (EEOC) will affect your company?” on BLR’s HR Concerns for 2011 survey, 34% responded positively. The EEOC has received an additional $23 million for its budget with an appropriation passed in December 2009, according to Reid Bowman, Esq., general counsel for ELT, Inc. During a recent webinar, Bowman explained that EEOC’s case backlog was about 70,000 and that over 200 new investigators will help to trim that backlog while producing stronger enforcement of regulations going forward. “From the EEOC charges, we see that [some] employers are only addressing sexual harassment or workplace compliance and might be overlooking overall EEOC compliance,” said Bowman.“Are employers talking about disability accommodation or religious accommodation? Do compliance programs include age and national origin discrimination? These are all topics that we’re seeing in terms of EEOC charges.” With the current infusion of dollars into its budget, EEOC “is more energized” with investigations and has “a renewed focus on systemic issues, such as increased scrutiny on company background screening processes, for example, since they may have an adverse impact on certain population groups,” commented Bowman.

Retaliation Claims
Margaret Hart Edwards, Esq., shareholder of Littler Mendelson (www.littler.com), added that retaliation claims are also in the forefront of EEOC investigators’ and juries’ minds.“Juries really believe in retaliation and as a consequence, retaliation
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verdicts tend to run much larger [monetarily] than verdicts for ordinary discrimination,” she says. She shared the broad definition of retaliation that is followed by EEOC.“It is any time you take action against someone because they’re engaged in a protected activity, which includes making an informal complaint internally or a formal complaint in a lawsuit, and it includes participating in any investigation. The employee doesn’t have to be right—just operating in good faith.” Edwards cited a Supreme Court decision in 2009 (Crawford v. Metropolitan Government of Nashville & Davidson County, Tennessee (No. 06-1595)). “Retaliatory conduct is any conduct that would discourage a reasonable person from engaging in opposition to unlawful conduct,” commented Edwards. She explained that what is prohibited conduct has been broadened through the Crawford case and through Burlington Northern & Santa Fe Railway Co. v.White decided by the Supreme Court in 2006 (No. 05-259). “Retaliation can reach beyond the workplace,” she explained. Some specific areas include “filing false criminal claims; filing a false report with an unemployment compensation office; and false references to damage job prospects.” Another area that employers should be watching is sexual orientation and gender identification discrimination issues, noted Edwards. The Employment NonDiscrimination Act (ENDA), most recently passed by the House of Representatives in November 2007, without gender identity included, was introduced again in June 2009 in Congress with gender identity back in the bill (HR 3017). In September 2009, hearings were held before the House Education and Labor Committee, and in November 2009, the Senate Health, Education, Labor, and Pensions Committee held hearings on ENDA as well, explained Edwards. Edwards cited a quote from the White House website (www.whitehouse.gov): “President Obama also continues to support the ENDA and believes that our antidiscrimination employment laws should be expanded to include sexual orientation and gender identity.” She notes that Obama signed the Hate Crimes Prevention Act in October 2009, which “expanded existing federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability and dropped the prerequisite that the victim be engaging in a federally protected activity.” Edwards’ take on ENDA is this: Why wait until this federal legislation is passed (which she believes will occur this year or next year)—start preparing now.“ENDA wouldn’t create any exceptions to sexual harassment prohibition, but would make any sexual harassment policies applicable to all, regardless of perceived sexual orientation or gender identity. It would also include special provisions regarding what to do with shared showers, restrooms, etc., and special provisions regarding dressing and grooming standards.”

Policy and Training Review
HR executives should do a thorough review of policies and practices if they haven’t within the past 12 months, in light of already enacted legislation and in preparation for the legislation that is ahead, suggests Edwards. Once that is done, they should turn a critical eye toward their training and revamp it where needed in order to prevent potential claims.

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To view the entire webinar, which also highlights racial discrimination issues, family responsibility discrimination, and equal pay issues, go to www.elt-inc.com/newsand-events/webinars, scroll down to May 20, 2010, under the “Past Webinars” listing, and access the entire webinar by clicking on the link found there.

Wage and Hour Investigations
Wage and hour investigations are on the rise. DOL’s Wage and Hour Division (WHD) conducts investigations for a number of reasons, all having to do with enforcement of the laws and assuring an employer’s compliance. WHD does not typically disclose the reason for an investigation. Many are initiated by complaints. All complaints are confidential, so the name of the worker, the nature of the complaint, and whether a complaint exists may not be disclosed. In addition to complaints, WHD selects certain types of businesses or industries for investigation. WHD often targets low-wage industries because of high rates of violations or egregious violations, the employment of vulnerable workers, or rapid changes in an industry such as growth or decline. Occasionally, a number of businesses in a specific geographic area are examined. The objective of targeted investigations is to improve compliance with the laws in those businesses, industries, or localities. Regardless of the particular reason that prompted the investigation, all investigations are conducted in accordance with established policies and procedures. During an investigation, DOL representatives visit a business and gather data on wages, hours, and other employment conditions or practices in order to determine compliance with the law. WHD does not require an investigator to previously announce the scheduling of an investigation, although investigators will often advise an employer before opening the investigation. The investigator has sufficient latitude to initiate unannounced investigations in many cases in order to directly observe normal business operations and develop factual information quickly. If violations are found, the employer may owe back pay, face penalties, and be advised by DOL to make changes in employment practices in order to avoid future violations. An investigation consists of the following steps: N Visitation and inspection of the business under investigation. N Examination of up to 3 years of records to determine which laws or exemptions apply. These records include those showing the employer’s annual dollar volume of business transactions, involvement in interstate commerce, and work on government contracts. Information from an employer’s records will not be revealed to unauthorized persons. N Examination of payroll and time records and taking notes or making transcriptions or photocopies essential to the investigation. N Interviews with certain employees in private to verify the employer’s payroll and time records; to identify workers’ particular duties in sufficient detail to decide which exemptions apply, if any; and to confirm that minors are legally employed. Interviews are normally conducted on the employer’s premises. In

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some instances, present and former employees may be interviewed at their homes or by mail or telephone. N When all the fact-finding steps have been completed, the investigator will ask to meet with the employer or a representative who has authority to reach decisions and commit the employer to corrective actions if violations have occurred. The employer will be told whether violations have occurred, what they are, and how to correct them. If back wages are owed to employees because of minimum wage or overtime violations, the investigator will request payment of back wages and may ask the employer to compute the amount due. DOL looks for complete, accurate, and unambiguous pay records for every employee for each pay period from the past 3 years. As a result, it is imperative that employers strive to keep accurate, well-organized wage and hour records that can be produced quickly.

#7 Employee FLSA Classifications
According to DOL’s 2010 Spring Regulatory Agenda, the Department plans to amend laws concerning recordkeeping for exempt employees and companionship services. BLR’s HR Concerns for 2011 survey revealed that these potential requirements are the second most pressing concern for HR professionals in 2011, after health care.

Amendments to the Fair Labor Standards Act (FLSA) Recordkeeping Regulations
DOL’s Wage and Hour Division (WHD) intends to update the FLSA recordkeeping requirements to foster openness and transparency, to increase awareness among workers, and to encourage greater compliance by employers. DOL is considering a proposed rule requiring covered employers to notify workers of their rights under the FLSA, and to provide information regarding hours worked and wage computation. Any employers that seek to exclude workers from the FLSA’s coverage will be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it. The proposal will also address burdens of proof when employers fail to comply with records and notice requirements. The current recordkeeping regulations require covered employers to keep specified payroll records and other information but do not require that such information or other information regarding a worker’s employment or exemption status be disclosed to the worker. This is an issue of transparency and is critical to workers’ understanding of their legal rights and responsibilities.

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Employers covered by the FLSA are currently required to provide notice regarding the Act and to keep records on wages, hours, and other items, as specified in recordkeeping regulations established to ensure compliance with the various provisions of the Act. Most of the information required to be kept is of the kind employers generally would maintain in ordinary business practices. Required records generally include the employee’s name, address, date of birth (if under 19 years of age), hours worked per day and per week, regular rate of pay (nonovertime rate) when overtime is worked, amount of straight time earnings and overtime pay for each workweek, and deductions from or additions to pay. The regulations also specify the records an employer must keep in order to confirm that particular exemptions from some of the FLSA’s requirements may apply. Employers must keep additional information on certain employees who are homebased or work under uncommon pay arrangements or to whom lodging or other facilities are furnished or other special requirements apply. Updating the recordkeeping requirements to promote transparency is expected to encourage greater levels of compliance by employers, to enhance awareness among workers of their status as employees or independent contractors and employee rights and entitlements to minimum wage and overtime pay, and to facilitate DOL enforcement.

Amendments to the FLSA Companionship Services Regulations
DOL intends to update the companionship services regulations in order to clarify when domestic service employees, who provide companionship services to the aged or infirm, are exempt from the minimum wage and overtime provisions of the FLSA. DOL intends to consider whether the scope of the companionship exemption as currently defined in the regulations continues to be appropriate in light of substantial changes in the homecare industry over the last 35 years. DOL intends to consider whether the current exemption of companions working for a party other than the family or household using the companionship services is consistent with the status of a companion in light of significant changes in the homecare industry. DOL also intends to address the scope of training required to render a worker “trained personnel” excluded from the companionship exemption, and the amount of household work that may be performed by the worker without losing the companionship exemption. The FLSA generally requires employers to pay minimum wage and overtime unless otherwise exempt. The FLSA was amended in 1974 to exempt companions for the aged and infirm from the minimum wage and overtime provisions of the Act and granted the Secretary regulatory authority to define and delimit the terms of this exemption. The regulations governing this exemption have remained largely unchanged since they were promulgated in 1975. The Wage and Hour Division intends to consider amendments to the regulations in light of the changed nature of the employment relationship for the majority of the companions to the aged and infirm, the increased formalization of this sector of the labor market, and to reflect the Secretary’s strategic objectives.
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#8 Retirement of the Baby Boomers
Labor Shortages Are Predicted: ‘Encore Careers’ May Be Solution
The United States, along with the rest of the world, is still in the throes of a major recession, with an unemployment rate close to 10%. But according to a new white paper, by 2018, with an expected return to healthy economic growth and with no change in current U.S. labor force participation rates or immigration rates, there will likely be more jobs than people to fill them. History shows that after a recovery from a recession, labor shortages typically follow, explains “After the Recovery: Help Needed,” written by Barry Bluestone and Mark Melnik of the Kitty and Michael Dukakis Center for Urban and Regional Policy at Northeastern University. The authors note that the best example is the early 1940s (coming after the Great Depression). They expect a similar labor shortage after recovery from the current recession. With population growth projected by the U.S. Census Bureau to be 47 million between 2015 and 2030, the increase in the number of individuals 55 and older will be more than double the increase of those aged 20 to 54 (an additional 25 million versus an additional 12 million), according to the white paper. If this shift to an ever-increasing older population follows the same retirement pattern as earlier generations, Baby Boomers will leave a large void in the labor force. The authors’ research shows that there could be 14.9 million new nonfarm payroll jobs created between 2008 and 2018, with a grand total of 15.3 million new positions, including self-employed workers, family members working in a family business, and those in farming. The authors estimate that there will be approximately 9.1 million additional workers to fill all positions. The white paper predicts that the social sector, consisting of industries covering health care and social assistance, educational services, nonprofit community and religious organizations, the performing arts, museums, libraries, and government, will have more than 5.2 million new jobs, and another 1.7 million jobs will be available in local, state, and federal government agencies, totaling 6.9 million new social sector jobs overall.

Trying Something New
The authors suggest that instead of retiring out of the workforce altogether, Baby Boomers should consider “encore careers.” According to the white paper,“Encore careers combine personal fulfillment, social impact, and continued income, enabling people to put their passion to work for the greater good.” Specific job titles listed in the executive summary of the white paper that the authors believe would particularly benefit from the presence of Baby Boomers include: primary, secondary, and special education teachers; childcare workers and

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teacher assistants; registered nurses, home health aides, personal and homecare aides, nursing aides, orderlies and attendants, medical assistants, licensed practical and licensed vocational nurses; medical and health service managers; business operations specialists; general and operations managers; receptionists and information clerks; clergy; and social and human services assistants. The opinions and analysis shared in the white paper are based on forecasts of population growth from the Census Bureau, official forecasts of job growth and labor force participation from the U.S. Bureau of Labor Statistics, and estimates of the number of jobs in specific occupations based on the Labor Market Assessment Tool developed jointly by the Dukakis Center and the Research Division of the Boston Redevelopment Authority. To access and download the entire white paper at no cost, visit www.encore.org/ research.

U.S. Workers Toil on Through Their Twilight Years
Many Americans have altered their retirement plans, according to a recent study by the Employee Benefits Research Institute (EBRI). For example, in 1993, 29.4% of adults aged 55 or older were in the workforce, and in 2008, this figure rose to 39.4%. In the group of adults aged 65 to 69, in 1985, 18.4% were working, and in 2006, this figure increased to 30.7%, according to EBRI. “Workers increasingly are facing more responsibility in paying for their retirement expenses,” EBRI suggests in its “Employment Status of Workers Ages 55 or Older, 1987-2008” study. “Private-sector workers who have access to an employment-based retirement plan most commonly have a defined contribution plan (typically a 401(k) plan, financed at least partially with workers’ own contributions), and retiree health insurance is becoming increasingly scarce. “Consequently, workers today have greater incentives to stay in the workforce, such as the ability (and in some cases, the need) to continue to accumulate assets in defined contribution plans and to have access to employment-based health insurance coverage, instead of having to tap into their savings to pay for their expenses.” Viewing older workers by educational level, the EBRI study found that, in 2008, workers over 55 who had attained higher educations were more likely to work fulltime, with those possessing a college degree being the most likely (at 68.2%). “The employment status of workers age 55 or older has significantly moved toward full-time, full-year work—with a corresponding decline in part-time, part-year work—over the 21-year period from 1987 to 2008,” the report explains. “This trend was found across all groups age 55 or older, all race/ethnicity categories, and all educational levels.Younger near-elderly/elderly workers were far more likely to be working full-time, full-year, but older workers had larger percentage-point increases in full-time, full-year work from 1987 to 2008.” The study adds,“The well-documented aging of the labor force that is now underway will most likely continue, if not accelerate, as the first members of the postWorld War II Baby Boom generation have now surpassed age 60.”
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As the international economy continues to move toward recovery, this trend of older workers staying in the workforce will be helpful to employers requiring the expertise and skill sets of seasoned professionals in order to rebuild business profits and expand products and services. To access the complete 16-page report, visit http://tinyurl.com/ya4gwin.

12 Points to Consider with Retirement Plan Options
Many employers that provide retirement benefits to their employees do not have the resources or time to thoroughly research retirement plan alternatives and options, according to Jeff Acheson, QPFC. However, he cautions, this process is important because “not all retirement plans are created equal.” Acheson, partner and managing director of Retirement Plan Solutions for Schneider Downs Wealth Management Advisors, LP (www.sdwealthmanagement.com), offers 12 key points to help create better retirement outcomes for plan sponsors and plan participants: 1. Position retirement plans as part of the compensation package. Plan sponsors “must communicate to participants that their retirement plan is a valuable part of their overall compensation,” Acheson says. 2. Keep it simple. Look for ways to incrementally improve long-term results with better performing funds, to create better preset portfolio options, and to reduce overall investment and plan management costs. 3. Map out projected income. Just as the Social Security Administration issues annual projections to individuals about their future benefits, Acheson says each plan participant should receive a similar computerized analysis explaining their projected income from all sources in retirement. 4. Provide auto enrollment. A provision in the Pension Protection Act of 2006 established the regulatory framework for plan sponsors to automatically enroll participants in retirement plans—to help overcome participant apathy. 5. Communicate the importance of saving for retirement. The best way to deliver that message is for employers to make a “reasonable and consistent contribution every year” to employees’ retirement plans. 6. Hire a professional. Engaging a fiduciary service to manage retirement plans will help ensure that fiduciary responsibilities mandated under the Employee Retirement Income Security Act, known as ERISA, are met and associated plan sponsor liabilities are minimized. 7. Look for an open architecture investment platform.“When evaluating the investment funds available on a particular investment platform, look to a custodian offering open architecture” (i.e., no imposed restrictions), he says. “Restrictions usually are a result of revenue-sharing agreements between a fund and the platform provider or the platform provider is pushing their own proprietary options.” 8. Consider using a mix of actively and passively managed funds.“A lot of plan providers strictly make available actively managed funds because there are more fees involved,” Acheson says. Actively managed funds outperform passively managed funds only about 30% of the time—over time—but the fees
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charged for actively managed funds are significantly higher, and many plan sponsors are questioning the value received for the fees paid. 9. Educate participants. Participants need to understand the importance of turning to a professional fiduciary to manage retirement plan investments. 10. Recommend use of an outside investment advisor. When it comes to money management,“most people wing it,” says Acheson. Consequently, most people are better served by hiring an outside advisor to “professionally design an investment portfolio that automatically adjusts itself over time” and that provides the “best opportunity for long-term performance.” 11. Provide older participants access to a retirement planning advisor.“Far too many participants do a good job accumulating money and then make poor decisions immediately following retirement and undo years of hard work and financial prudence,” he says. 12. Look at fee disclosure and transparency issues. Noting that fees vary widely by plan provider, Acheson recommends that plan sponsors “demand” that their current provider disclose all of the fees being paid, using DOL’s 401(k) Plan Disclosure Form (www.dol.gov/ebsa/pdf/401kfefm.pdf). Then, the plan sponsor can solicit requests for proposals from other plan providers (in the same format) and compare the fees.

#9 Government Contracts
New Section 503 Disability Regulations
Under Section 503 of the Federal Rehabilitation Act of 1973, an employer with a government contract or subcontract amounting to $10,000 or more must take affirmative action to employ mentally or physically qualified disabled individuals. This requirement is part of OFCCP regulations that implement the Rehabilitation Act. Americans with Disabilities Act Amendments Act (ADAAA), which took effect January 1, 2009, expanded the definitions of who is considered an individual with a disability. The amendments substantially broaden the definition of “disability” under the Americans with Disabilities Act (ADA), allowing more individuals to claim coverage under the law. The ADAAA requires government contractors to look more closely at applicants and employees to determine whether they are considered to be disabled. Covered employers are required to take all necessary actions to ensure that no one attempts to intimidate or discriminate against an individual for filing a complaint or participating in a proceeding under Section 503.

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Congressional Testimony Outlines OFCCP’s Priorities
In a recent statement to Congress, Les Jin, OFCCP’s deputy director, revealed the agency’s top priorities on an agenda filled with enforcement activity. Speaking to the House Subcommittee on Economic Opportunity, part of the Committee on Veterans Affairs, this past fall, Jin stressed three of OFCCP’s top priorities and the means by which OFCCP intends to serve them. According to Jin, OFCCP’s three priorities are: ◆ Strengthening enforcement; ◆ Implementing a robust regulatory agenda; and ◆ Identifying more individual complaints through greater outreach

Priority 1: Strengthening Enforcement
In 2009, OFCCP investigated a total of 3,917 establishments. According to Jin, OFCCP has 3,975 cases for evaluation this year, for which OFCCP has performed 1,142 desk audits and conducted 683 on-site visits. Jin also reported that OFCCP has completed more than 450 evaluations of contractors who received federal funds through the American Recovery and Reinvestment Act of 2009. In order to strengthen enforcement, OFCCP has instituted a new protocol that requires OFCCP compliance officers to go on-site and verify how contractors are treating protected veterans and people with disabilities, rather than simply accepting contractors’ self-reporting. In FY 2010, roughly 30% of all on-site reviews conducted by OFCCP found recruitment violations pertaining to protected veterans. As a result, said Jin, more on-site reviews are necessary to improve OFCCP’s verification efforts and increase contractor accountability. In addition to on-site reviews, OFCCP has, by its own admission, become more aggressive in the way it resolves cases. For example, says Jin, in FY 2010 OFCCP referred more than 34 cases to the Solicitor of Labor for litigation, more than doubling the amount referred in FY 2009 and tripling the number from FY 2008. Also, for the “worst offenders” OFCCP will impose contract-related sanctions against contractors or subcontractors for failure to comply with the laws enforced by OFCCP and their implementing regulations.

Priority 2: Implementing the Regulatory Agenda
In order to address specific questions regarding treatment of veterans, Jin stressed OFCCP’s recent regulatory activities pertaining to The Vietnam Era Veterans Rehabilitation and Adjustment Act (VEVRAA) and Section 503 of the Rehabilitation Act. Specifically, Jin cited OFCCP’s “ambitious process of making major regulatory revisions to our enforcement program that will allow OFCCP among other things, to , help veterans get good jobs.” Chief among these regulatory revisions are OFCCP’s recent proposed changes to VEVRAA and Section 503 of the Rehabilitation Act. OFCCP announced a proposal to revise VEVRAA’s regulations in DOL’s Spring 2010 Regulatory Agenda. The Notice of Proposed Rulemaking, which is scheduled to be published next winter, would require federal contractors and subcontractors to strengthen affirmative action programs and measure the effectiveness of their equal employment opportunity efforts with quantitative dates, according to Jin.
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Also, OFCCP recently issued an Advanced Notice of Proposed Rulemaking (ANPRM), in which the agency asked for public input on 18 key questions aimed at strengthening the regulations implementing Section 503 of the Rehabilitation Act of 1973 in order to help people with disabilities obtain employment. A total of 127 comments were submitted to the OFCCP focusing on the objective to set place, ment goals and quantitative analysis versus the quality of data available and the burden this process can create for federal contractors. As a result of the input received, OFCCP is in the process of crafting proposed regulatory changes to Section 503 that “better address disparities that people with disabilities— including some veterans with disabilities—face in the workplace,” said Jin.

Priority 3: Identifying Individual Complaints Through Outreach
According to Jin’s testimony, OFCCP believes that in recent years, the agency has not prioritized individual complaints, instead, focusing on systemic discrimination across businesses and whole industries. As a result, the agency pursued fewer cases of discrimination against protected veterans and persons with disabilities, which rarely raise systemic issues. However, cases involving veterans and persons with disabilities will now receive priority. In order to give these claims priority, a new team at OFCCP dedicated to focusing on community-based engagement as part of “communication and outreach strategies” has formed. OFCCP is utilizing social media, partnerships with civil rights advocates and other grass roots efforts to educate veterans about their rights in the job market.

#10 Workplace Wellness
In this age of skyrocketing healthcare costs, it isn’t surprising that wellness is a topic of discussion at home, in our schools, at all levels of government, and in the workplace. There is evidence that an effective workplace wellness program will result in a healthy return—both in terms of employee productivity and reduced healthcare costs. However, in order to realize this return, employers must make sure wellness programs are well-focused and well-executed. In other words, wellness programs must target the health concerns of employees and their families. In addition, the company must communicate with employees about the program and its benefits to make sure it is being used effectively. Workplace wellness program offerings may vary, from simple things such as discounts in membership fees at health clubs and in weight loss programs to specific help with managing chronic diseases such as high blood pressure and diabetes. As with any workplace program, employers must consider federal and state laws when setting up a workplace wellness program.

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What Is Wellness?
The concept of wellness encompasses every aspect of our lives. In 1979, Dr. Bill Hettler, cofounder of the National Wellness Institute (http://www.nationalwellness .org), developed a model called The Six Dimensions of Wellness, which is generally accepted by the wellness community. The six dimensions are: N Physical—bodily health through exercise, nutrition, and abstaining from harmful activities, such as smoking N Emotional—emotional health through learning to recognize, express, and control feelings and moods N Intellectual—mental health through developing creativity, learning ability, and problem-solving skills N Occupational—job satisfaction through learning individual aptitudes and skills and finding meaning in work N Social—community connections through learning the part we play in our interconnected world N Spiritual—larger life questions through learning to choose and live by a set of values that give meaning to our lives

Legal Issues Related to Workplace Wellness Programs
Employers have a great deal of flexibility in designing wellness programs. However, it is a good idea to review any program with an attorney, and employers should work closely with insurance providers if the wellness program will offer financial incentives or benefits through group health plans. There are a number of laws to be aware of when developing and implementing these programs.

Americans with Disabilities Act (ADA)
The ADA requires employers to offer a reasonable accommodation to an employee with a known disability, and it prohibits employers from making medical inquiries or requiring medical examinations (unless job related and consistent with business necessity). It is also unlawful under the ADA to take any adverse employment action based on an individual’s actual or perceived disability. The EEOC has offered employers some guidance on the ADA’s restrictions on medical inquiries and examinations. Under the guidelines, an employer may conduct medical examinations and activities that are part of a voluntary wellness and health screening program. Therefore, offering employees the opportunity to voluntarily participate in health screening programs for high blood pressure and cholesterol monitoring is not likely to violate the ADA, as long as there is no penalty (economic or otherwise) for not participating. Employers must treat any information acquired as a confidential medical record.

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Health Insurance Portability and Accountability Act (HIPAA)
In late 2006, DOL’s Employee Benefits Security Administration (EBSA), the Internal Revenue Service, and the Department of Health and Human Services published final rules that provide guidance in complying with the nondiscrimination provisions of the Health Insurance Portability and Accountability Act (HIPAA). The rules also provide guidance on the implementation of wellness programs. HIPAA nondiscrimination provisions generally prohibit group health plans from charging similarly situated individuals different premiums or contributions or imposing different deductible, copayment, or other cost-sharing requirements based on a health factor. Health factors include: health status, medical condition (including both physical and mental illnesses), claims experience, receipt of health care, medical history, genetic information, evidence of insurability (including conditions arising out of acts of domestic violence), and disability. However, there is an exception that allows plans to offer wellness programs if they meet certain criteria. Under the regulations, examples of wellness programs that comply with HIPAA’s nondiscrimination requirements without having to satisfy any additional standards (assuming participation in the program is made available to all similarly situated individuals) include: N A program that reimburses all or part of the cost for memberships in a fitness center N A diagnostic testing program that provides a reward for participation and does not base any part of the reward on outcomes N A program that encourages preventive care through the waiver of the copayment or deductible requirement under a group health plan for the costs of, for example, prenatal care or well-baby visits N A program that reimburses employees for the costs of smoking cessation programs without regard to whether the employee quits smoking N A program that provides a reward to employees for attending a monthly health education seminar A wellness program that conditions a reward on an individual satisfying a standard related to a health factor must meet these five requirements: N The total reward must be limited. Generally, it must not exceed 20% of the cost of employee-only coverage under the plan. N The program must be reasonably designed to promote health and prevent disease. N The program must give individuals eligible to participate the opportunity to qualify for the reward at least once per year. N The reward must be available to all similarly situated individuals. The program must allow a reasonable alternative standard (or waiver of the initial standard) for obtaining the reward to any individual for whom satisfying the initial standard is medically inadvisable or unreasonably difficult due to a medical condition.

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N The plan must disclose in all materials describing the terms of the program the availability of a reasonable alternative standard (or the possibility of a waiver of the initial standard). DOL issued frequently asked questions on HIPAA’s nondiscrimination requirements to assist the employee benefits community in complying with the new rules. The information is available on the DOL website at http://www.dol.gov/ ebsa/faqs/faq_hipaa_ND.html. DOL has also published a Wellness Program Checklist to help employers determine if their wellness initiatives are required to comply with HIPAA regulations. Once an employer has established that its program is subject to HIPAA, the checklist helps determine if the program is in compliance. The checklist is part of Field Assistance Bulletin No. 2008-02, which is available on DOL’s website at http://www.dol.gov/ebsa/pdf/fab2008-2.pdf.

National Labor Relations Act (NLRA)
Employers who have negotiated a collective bargaining agreement with a union are required by the National Labor Relations Act to bargain over “wages, hours, and other terms and conditions of employment.”Therefore, a union may claim that a wellness program is a term or condition of employment that mandates bargaining. Employers should also check the governing collective bargaining agreement to see if a wellness program falls under a subject they have agreed to negotiate. For example, a bargaining agreement may mandate negotiation over the amount of employee-paid insurance premiums, but not health insurance or other employee insurance benefits.

Internal Revenue Code
Depending on the incentives and benefits included in an employer’s wellness program, there may be tax consequences for the employer and the employee. For example, some employee incentives may constitute taxable income for employees. Generally, the value of an incentive is includible in the employee’s gross income (e.g., gift cards, memberships to off-site exercise facilities). However, there are some exceptions, including: N Free or subsidized access to a gym or athletic center that is operated by the employer and located on the employer’s premises N Discount on employee contribution required to participate in employersponsored health plan N Contributions to an employee’s flexible spending account In addition, a discount to an employee’s healthcare insurance offered as an incentive to employees who participate in a wellness program would probably not be considered taxable income for employees. Employers are well advised to obtain guidance from a tax professional as tax laws are complex and regulations can change frequently.

State Laws that Protect Off-Duty Conduct
Several states have laws protecting the off-duty conduct of employees. Some states, including Connecticut, Indiana, Kentucky, Louisiana, Maine, New Mexico, Nevada, New York, North Dakota, Oklahoma, Rhode Island, and the District of Columbia,
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have “Smokers’ Rights” laws that protect individuals from discrimination on the basis of the lawful use of tobacco products outside of the workplace. Other states, such as California, have broader coverage that includes any lawful activity occurring away from the employer’s premises during nonworking hours. When designing a wellness program, employers should review state laws prohibiting employment discrimination to be sure the program complies with state requirements. Once a program is in place, employers should take steps to ensure that employment decisions are not based on conduct that is protected by law. It is necessary to keep in mind that ERISA may preempt state law when a wellness program is part of an employee benefit plan. However, ERISA will neither preempt state laws that have only a “tenuous, remote or peripheral connection” to employee benefit plans, nor will it preempt state insurance laws. If a wellness program is challenged based on a state law that protects off-duty conduct, ERISA’s preemption clause may come into play—but it would depend on whether the program is part of an employee benefit plan within the meaning of ERISA’s preemption clause. A federal court decision demonstrates the difficulties that arise when a mandatory wellness program conflicts with an employee’s off-duty conduct (Rodrigues v.The Scotts Company LLC, No. 07-10104 (D. Mass. 2008)). In this case, the employer instituted a mandatory wellness program that included a tobacco-free policy prohibiting “smoking of tobacco products by its employees at any time and at any place, whether or not in the workplace or during work hours.” The applicable state law does not have a provision prohibiting discrimination against employees who use tobacco products. The employer used random testing of employees to enforce its policy. When it subsequently discharged an employee who tested positive for nicotine, the employee filed a lawsuit based on various claims. Ultimately, the court ruled the former employee could pursue his lawsuit based on his claims of invasion of privacy and a violation of ERISA, but not on his claim of wrongful termination or a violation of the state civil rights law. Note: Because state laws and regulations vary widely, employers should have their wellness programs reviewed by an attorney familiar with applicable state laws, particularly if employee participation in a wellness program is mandatory.

Setting Up a Workplace Wellness Program
There are a number of steps employers should take when setting up a wellness program to make sure it will be effective. These include obtaining support from senior management, assessing the current level of wellness in the workplace, creating a customized operating plan, launching the wellness plan, and communicating with and educating employees about the plan. Finally, employers should continually measure and assess the effectiveness of the workplace wellness program, adjusting as necessary when needs are identified.

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Obtain Support from Senior Management
The critical first step in starting and running an effective wellness program is getting senior management on board. In fact, save for a few notable grassroots exceptions, most workplace wellness programs do not result in a positive return on investment (ROI) without the committed support of senior management. According to management guru Peter Drucker,“major change initiatives must be actively led by senior management.” Other prominent organizations ranging from the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA) to the Society for Human Resource Management (SHRM) to the Wellness Councils of America (WELCOA) agree: senior-level support is imperative to get maximum employee acceptance of and participation in workplace wellness programs. Senior executives are the people responsible for setting priorities and allocating resources. To secure the financial resources necessary to deliver effective programming or to have effective access to the rest of the organization, the senior staff must be committed to the effort. Moreover, senior executives can provide additional assistance to link health promotion objectives to business outcomes—thus, positioning health promotion as an integral part of the organization. Last, but certainly not least, senior executives can significantly increase the likelihood that an initiative will be ultimately successful by crafting and implementing supportive corporate policy.

Make the Business Case for a Wellness Program
Profit, or at least sound financial practice, is the bottom line of every business, and senior management absolutely needs to see the financial benefits of incorporating wellness into the workplace culture. Senior officers need to be convinced that wellness is not merely a “nice” thing to do for employees’ health but that it’s also a “necessary” thing to do for the bottom line financial health of the business. Management expects bad news when it comes time to renew health insurance contracts. Making the specific case requires gathering crucial numbers such as the number and cost of workers’ compensation claims and disability claims, and the cost of lost productivity due to sick days and light duty. Added to the rising increase of health insurance, the financial case should be easy to make. Data is also available about the cost of obesity, sedentary lifestyles, smoking, and stress both in terms of healthcare costs and lost time at work. This bad news should next be contrasted with the good news about how the financial side of an effective workplace wellness program works. A helpful step in gathering information is to research other workplaces in the industry or the local community to find wellness success stories close to home that will give senior management similar scenarios to compare. More good news is that it doesn’t take much of an improvement (less than a 1% reduction in risk factors) to make wellness initiatives pay off. In general, employers can earn back the cost of programs over the course of 5 years if they can reduce risk factors by less than 0.2%, according to Dr. Ron Goetzel of Cornell University.

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Finally, wellness should be treated as an integral part of the workplace organizational culture by referring to it with the same terminology and respect that is used for other workplace departments.

Assess the Current Level of Wellness in the Workplace
Assessment is required for any program to be successful.That’s why businesses do market research, politicians take polls, and producers show films to test audiences. Everyone who wants his or her project to succeed needs to research the market, the buyer, and the competition.“Know your audience” is the primary piece of advice for speakers, writers, politicians, businesspeople, anyone who has a message to present. In the context of setting up a workplace wellness program, this means understanding the needs of the company and those of the employees and their families. For example: N What wellness concerns are unique to the industry (e.g., ergonomic issues for processing plants)? N What wellness concerns are unique to the workplace (e.g., areas with excessive noise or wet floors)? N What wellness initiatives would most benefit employees (e.g., weight loss programs)? N What wellness initiatives do employees want (e.g., gym membership discounts)? N What potential barriers to success does the wellness program face (e.g., lack of participation, short-term commitments, or high employee turnover)?

Create a Customized Operating Plan
For a wellness program—as well as any other workplace project—to be effective, all facets must be defined. There must be a detailed operating plan that provides specific definitions of what “works” and doesn’t work for the workplace. The following items should be an integral part of the wellness program operating plan: N Mission statement N Objectives N Specific initiatives N Implementation timeline N Evaluation plan N Budget In addition, it is important to consider and develop an organizational structure to support the initiatives, such as a wellness team and committees to run individual initiatives. Mission statement. An effective wellness mission statement is broad enough to include the many aspects of wellness (i.e., including as many of the six dimensions of wellness discussed above as possible), and detailed enough to mention the specific wellness initiatives the program offers. Leave room for flexibility to add and delete initiatives as the program offerings change. The wellness mission should also support the company’s mission statement and goals.
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Objectives. Based on demographic and medical research, list the problem areas in the workforce. Once these are identified, set specific objectives in each health area using the so-called SMART system. SMART objectives are: ◆ Specific. Goals are clearly defined. ◆ Measurable. Goals are quantifiable with specific numbers. ◆ Achievable (attainable or actionable). Goals are possible for employees to meet with the resources provided. ◆ Relevant (realistic or results-oriented). Goals are appropriate to employees and the organization’s mission statement. ◆ Timed (time-framed or time-specific). Goals are to be achieved within a set time. Goal-setting, both for the wellness program and for employees, is crucial. In order to change employee behavior, employees need SMART goals that inspire and motivate. When employees get specific targets to aim for that are challenging yet achievable, they are more likely to rise to the occasion. And when the wellness program has specific, targeted goals, results can be measured against those goals to demonstrate the effectiveness of the programs. Identifying specific initiatives for achieving goals. Continue the process of integrating wellness into the workplace culture by including the wellness initiatives already in place, such as health insurance, dental insurance, employee assistance program (EAP), or health savings account (HSA). Perhaps some of the objectives will involve modifying existing plans. Describe the initiatives that will be used to achieve objectives. In choosing initiatives, decide whether external or internal resources will be used. For those programs kept inhouse, create a leadership team and assign team members. HR should take responsibility for the company health policies (insurance, benefits, leave, disability, and vacation, as well as ensuring that all federal and state regulations are followed). The HR manager should also act as a point of contact for any other portions of the wellness program (for example, a Weight Watchers® program, exercise program, or smoking cessation program), but it will be more effective for non-HR personnel to work as team leaders, mentors, and coaches on the wellness team. Having employees involved on wellness teams makes the team less intimidating to other employees and will encourage more participation. Whether using in-house or outside resources, choose the initiatives that will best meet the organization’s goals. If the workforce is a typical American workforce, weight loss programs and/or get active programs may be a good starting point. Regarding weight loss choices, there are several commercial weight loss programs available that include meetings and support groups. Consider partnering with one of these groups that has a local chapter, such as Weight Watchers. Meetings can be held in the workplace or off-site to include family members as well. For get active programs, consider partnering with the local YMCA. The “YMCA Activate America” program can help employees and their dependents get involved in an active lifestyle (go to http://www.ymca.net/activateamerica). In addition, many employers start a formal walking program by mapping out routes in and around the worksite, issuing pedometers, and counting steps.
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At some point in the workplace wellness journey, a health fair at the worksite may be a good option. Some workplaces may choose to kick off their wellness program with a health fair; others may want to ease into their wellness program and help build momentum by promoting an upcoming health fair at which more wellness initiatives will be revealed, and/or prizes awarded. Develop a communication plan. The wellness operating plan also needs to detail how the wellness message will be communicated. There are several options, including but certainly not limited to: N Including a brief wellness tip in workplace meetings N Sending a weekly wellness e-mail tip N Including a wellness section in workplace newsletters N Hanging wellness posters on cafeteria or break room bulletin boards N Distributing a wellness newsletter monthly or quarterly N Conducting monthly or quarterly lunch time wellness talks N Regularly communicating wellness success stories Develop the implementation timeline. Create a specific timeline for the wellness program. Outline when each step of each initiative will begin and end. Give ample time for each step to be completed. Plan for the ongoing evaluation of wellness initiatives. Effective wellness operating plans need to have a clear evaluation plan. This is the only way to know definitively whether the initiatives have “worked.” In the evaluation plan, describe how each initiative will be measured. Design pre- and post-assessment forms for the overall wellness program and for individual initiatives. Develop a budget for the wellness program. Even if the company does not intend on investing a significant amount of money initially on the wellness program, an itemized budget is still important. Follow the process and format for budgeting used by other departments in the company. This will continue the process of integrating wellness into the organizational structure and give it the same level of importance as other departments. When developing a budget, first consider the scope of the program. How many employees will be involved? If it is a program where employees have to elect not to participate, 80% of employees are likely to participate. How many dependents and retirees will be involved? Will there be paid guest speakers? Will the company plan on buying equipment, such as pedometers? What kind of incentives will be offered? This is a good time to consider what kinds of incentives the company would consider offering for participation in the wellness program. Financial incentives can be great motivators. According to some studies, the most effective monetary values run from $300 to $1,000. If this expense is too great, consider smaller incentives, such as discounts to sports or health food stores, gym memberships, or extra vacation time. Gather figures for outside speakers, equipment, incentives, and other expenses. With these factors in mind, estimate what the program will cost. Next, consider who

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will pay for the wellness program. Will the employer pay all expenses? Will employees pay for the initiatives they participate in? Will they share the expenses?

Launch and Communicate the Wellness Plan
To help make the wellness program as effective as possible, make sure the program launch includes these three elements: Get senior management involved. As noted above, a wellness program will succeed only if senior management is part of the process and supports the initiative. Have senior management speak at a kick-off event, or perhaps even challenge employees to a contest to see if they can reach certain goals before senior managers meet those goals. Play to the audience. Remember that effective wellness programs are aimed at the vast middle ground of the employee population, those employees who are generally healthy but who have one or two problem areas and are considered a medium risk. For most workplaces, that encompasses approximately 80% of the workforce. Also be sure to keep in mind and address the health needs of employees’ family members and dependents. Make it fun. Generate excitement for wellness by making the launch activities enjoyable. Some workplaces choose to launch their wellness programs with a health fair. If a health fair is the kick-off activity, make sure it is well-organized so that it will run smoothly. Once the program is launched, it is important to continuously communicate with employees. The real benefit to the company of a wellness program is the long-term reduction in healthcare costs and healthier, more productive employees. Therefore, maintain an ongoing effort to communicate, educate, motivate, and empower employees with the goal of changing behavior. The wellness program, initiatives, and goals should be a regular part of employee communication.

Measure, Assess, and Adjust
Measuring the results of the overall wellness program is vital to assess and adjust the program based on what works best with a particular group at a particular location. Execute this step in the same way as employee performance reviews, annual budgeting, or other formal, annual, continual improvement efforts. Doing so provides yet another way to ensure the wellness program is integrated into the organizational culture. In other words, think of wellness performance reviews as an (at least) annual time to report the progress and problems in the wellness program, to make adjustments, and to set new goals. Assessments should not measure only dollars and cents. A financial return on investment (ROI) is critical, and it is important to have positive numbers to report to senior management to continue or even enlarge the scope of your wellness program and perhaps receive a bigger budget. But it is also important to measure health changes and employee satisfaction. Employee satisfaction. Because the success of the workplace wellness program depends on employee participation, this is an important measurement. Some key indicators include employee morale, absenteeism, and retention and turnover. An annual employee survey is a good tool for gathering information that will help

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assess employee satisfaction before and after the implementation of a wellness program. In addition, statistics on who is participating in the program and to what extent they are participating will provide important data for measuring employee satisfaction. Employee wellness. The goal of the wellness program is to help employees stay well. When a program is developed, first assess the current level of wellness. Based on the health risks identified during the assessment, the wellness program will focus on specific areas and goals, and established timelines for achieving goals. Because the program targets key health concerns, measuring related changes in employee health is important. Measurements might include changes in BMI (body mass index), blood pressure, cholesterol level, blood sugar, smoking habits, and prescription usage. In addition, it is important to measure individual activity level. ROI. A wellness program requires a long-term commitment to improving employee health and, over time, a company should realize financial benefits such as reduced healthcare costs and greater employee productivity. However, it is important to manage expectations in the short-term. So, while it is important to immediately track and measure the return on a wellness investment, it is important remember that most financial benefits will be long term. ROI analysis deals strictly with the financial impact of the wellness program and is fast becoming an essential evaluation method for workplaces that invest in wellness. ROI analysis answers the question,“For every dollar invested in wellness, how many dollars does the employer get back?” Calculating ROI is critical to the longterm success of a wellness program because it: N Is a concrete way to validate the wellness program as a business tool N Can be used to justify the cost of the wellness program to senior management N Can be a useful tool for choosing future wellness initiatives Using the following formula when measuring the ROI provides the percentage of return earned for every wellness dollar spent. ROI percent = ((Monetary Benefits minus Wellness Costs) divided by Wellness Costs) multiplied by 100 To get the figures for this formula, keep track of wellness costs, including: design and development (outside consultants for health risk assessments, outside partnerships); promotion (newsletter and poster printing); administration; delivery (staff, technology, outside consultant); materials (pedometers, health fair supplies); facilities (on-site exercise equipment, walking paths, outside gym memberships); employee wages (wellness team members); and evaluation (outside evaluation consultants). After wellness program implementation, keep track of monetary benefits, including: health insurance savings; productivity increases through presenteeism reductions; absenteeism reductions; lower workers’ compensation costs; and lower turnover costs. Two other measurements to consider are cost-effectiveness analysis (CEA) and cost-benefit analysis (CBA). CBA works hand-in-hand with ROI and monetizes all

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costs and all benefits. Results are then presented in a ratio of benefit-to-cost and ROI. A 3-to-1 ROI means $3 was saved for every dollar that was spent. Cost-effective analysis is helpful when trying different programs to achieve the same wellness initiative, such as smoking cessation or weight loss. The cost effectiveness of Program A can be compared to the cost effectiveness of Program B by looking at the cost for each employee who achieved a goal to stop smoking or to reach goal weight. Costs include program discounts, group rates, and inflation adjustments. Results are reported as an incremental cost per unit of effectiveness for each respective program.

Suggestions for Wellness Programs
Ideas that employers can use in their wellness programs are as varied as the employees in an employer’s workforce. It may take some trial and error to find the ones that create an enthusiastic response and achieve high levels of participation. Some successful programs have included one or more of the following: N Voluntary screening to check blood pressure, cholesterol levels, and other risk factors N Personal finance education and counseling N Smoking cessation program N Financial incentives for voluntary participation in healthcare assessment N Reduced copayments for drugs that treat asthma, diabetes, hypertension, and other chronic conditions N Health insurance discounts for nonsmokers N Health insurance surcharges for smokers N Discounted gym memberships N Partnering with local restaurants to provide healthy lunch options N Reimbursement for membership in Weight Watchers or other weightmanagement programs N Healthy food options in company cafeteria or vending machines N On-site medical facility, fitness center, and pharmacy for employees’ use N No out-of-pocket cost to employee for preventive care, e.g., annual physical exam, well-child exams, mammograms N Flu vaccinations N Newsletters, e-mail notices, bulletin board postings, and other awareness strategies to increase participation in wellness initiatives Both large and small employers can implement wellness programs that help reduce the cost of health care and improve the health of employees. Careful assessment of workforce needs, tailoring of programs to meet those needs, and a comprehensive health management strategy are all components that will help an employer’s wellness program succeed.

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Get Employees Engaged in Wellness by Creating Strong ‘Culture of Health’
“Lack of employee engagement is one of the biggest obstacles to changing health behaviors,” stressed Jennifer Bruno, B.S., during a recent webinar titled,“Defining a Culture of Health and the Link to Business Performance.” Bruno, executive director of Wellness & Prevention, Inc., a Johnson & Johnson Company (J&J), cited a 2010 Towers Watson survey (http://tinyurl.com/24hs2ze), which reported that 58% of employers rated lack of employee engagement as the biggest obstacle to changing employee health. She explained that in late 2009, Wellness & Prevention, Inc., fielded its own study of 3,000 full-time employees aged 25 to 60 that found that in companies with a strong culture of health, employees were three times more likely to report taking action on their health than in other companies. Notably, only 26% of respondents to the survey described their company as having a strong culture of health. The study also found that such companies have significantly higher employee participation rates across all their wellness programs, commented Bruno. For example, almost 75% of employees in a strong culture of health participated in eating healthy foods in their cafeteria (less than 50% did so in weak or moderate cultures of health). Other wellness programs reported in the study as having good participation rates in companies with a strong culture of health included physical fitness assessments, weight loss programs, and exercise participation (exercise classes and walking or jogging), noted Bruno. Employees in companies with a perceived strong culture of health “rated all aspects of their performance higher than employees whose employers do not have a strong culture of health—overall personal life, overall work life, job performance, career paths, and ability to reach full potential at work,” Bruno explained. She also stated that the study results showed an employer’s commitment to employee well-being is as critical as a commitment to opportunity for advancement and is more important than being competitive with other employers in the areas of pay and benefits for overall job satisfaction.

What’s a ‘Culture of Health’?
Bruno shared this definition of a “culture of health” from Nico Pronk, Ph.D., president, International Association for Worksite Health Promotion:“A workplace ecology in which the dynamic relationship between human beings and their work environment nurtures personal and organizational values that support the achievement of a person’s best self while generating exceptional business performance.” Bruno stressed that a culture of health shares common themes, including management support, commitment, and leadership; motivational programs and environmental influences that help employees sustain behavioral changes; policies, procedures, and benefits that support employee health; two-way communication between the employer and employee; outcomes measurement (i.e., health risk factor reduction); and health improvement.

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At J&J, the culture of health includes shared attitudes and values between leadership and employees, noted Bruno. Examples are encouraging people to take a walk during the day or starting meetings with a health or safety tip, she explained.

Impact on Bottom Line
Bruno cited another Towers Watson report,“Staying@Work Report 2009/2010” (http://tinyurl.com/ygzrcuf), which found that companies committed to health as a business imperative achieve significantly better financial outcomes and lower employee turnover. Those are outcomes that any organization would be happy to achieve! To access the webinar, which includes a case study regarding J&J’s experiences and successes with its employee wellness initiatives (shared by Fikry Issac, M.D., M.P H ., FACOEM, executive director, Global Health Services and chief medical offi. cer, Wellness & Prevention, Inc.), go to http://tinyurl.com/2fp45t5.You will need to register, but the webinar is free.

Conclusion
We hope that you have enjoyed this special report, and that you found the information contained in this report useful. BLR strives to provide Human Resources professionals with practical and easy-to-use information on a wide variety of topics. If you would like to see the complete library of publications available through BLR, please visit our website at www.blr.com or call our Customer Service Department at 800-727-5257.

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10-Minute HR Trainer
Just 10 minutes to deliver high-impact training on essential HR topics. 31507300 . . . . . . . . . . . . . . . . . $295 (plus quarterly updates)

Employee Training Center
Web-based individual training with course monitoring 52060700 . . . .Call for information

What to Do About Personnel Problems in [Your State]
Over 150 federal/state topics and Regs SXX . . . . . . . . . . . . . . . . . . . $395 (includes 6 annual updates) Available in all states except CT

Audio Click 'n Train: Sexual Harassment: What Employees Need to Know
Ready-to-deliver effective toolbox training—no preparation required! 30520400 . . . . . . . . . . . . . . . $149 More titles available

Employee Compensation in [Your State]
State/federal guide to effective and lawful pay practices to attract and retain a top-notch workforce. WXX . . . . . . . . . . . . . . . . . . $395 (includes 6 annual updates)

HR.BLR.com
Your online answer source for state HR compliance issues and tools. 4200XX00 . . . .Call for information

Family & Medical Leave Act Compliance Guide
The “one stop” reference you turn to for informed FMLA compliance. 31500900 . . . . . . . . . . . . . . . . . . $295 (plus quarterly updates/newsletters)

Job Descriptions Encyclopedia
500 prewritten job descriptions you can depend on and customize. 31501800 . . . . . . . . . . . . . . . $299 (plus quarterly updates)
Also available on CD (31517200)

HR Audit Checklists
Practical, prewritten checklists—help with key HR compliance. 30519900 . . . . . . . . . . . . . . . . . $295

Workplace Wellness Guidebook
Combat increasing costs and keep your employees healthy. 30529200 . . . . . . . . . . . . . . . . . $199 30529260 (PDF) . . . . . . . . . . . $179

HR-SRST1010