The HR Strategist: May 2015
In this issue:
- Employer's Options When an Employee Resigns on FMLA Leave
- Strategies for Conducting a Successful Benefits Enrollment Process
- Study Says Employee Absenteeism Hits Co-Workers Hard
- Secret Connections: LinkedIn Contacts May Be a Trade Secret
- Did You Know?
Under Family and Medical Leave Act (FMLA) regulations, employers are required to maintain an eligible employee's coverage under any group health plan while the employee is on leave. In addition, employees on FMLA leave are entitled to reinstatement after they complete their protected leave.
After the employee has submitted a letter of resignation or some other formal notice of his/her intent not to return to work, FMLA regulations state that the employer is no longer required to maintain health benefits (subject to COBRA requirements) or to reinstate the employee.
The employer's obligations continue, however, if the employee indicates that he/she may be unable to return to work but expresses a continuing desire to do so.
Employers must take steps to effectively follow the regulatory provisions of Section 825.311 of the FMLA when an employee goes on leave. The employer's notice of rights and responsibilities should clearly advise the employee that periodic reports of his status and intent to return to work will be required.
The notice should also clearly outline any requirements for the employee to make health benefits premium payments during the leave. Finally, it should inform the employee of his potential obligation to pay health insurance premiums currently paid by the employer if the employee fails to return to work at the leave's end.
By including this information in the notice, an employer establishes an expectation of on-going communication. This helps ensure that the employer receives timely notice of the employee's intentions and makes clear the employer's intention to pursue the recovery of its share of health plan premiums paid during any period of unpaid FMLA leave if the employee doesn't return to work.
If at any time during the leave the employee advises the employer that he/she does not intend to return to work, he/she should be required to submit a letter of resignation or other formal documentation before the employer initiates the termination of employment and benefits.
The majority of employees take FMLA leave intending to return to work, but plans can change. Required periodic updates can help an employer to avoid employment gaps and to reduce benefits expenditures when employees choose not to return.
The benefits enrollment process can be daunting for both employees and employers alike. While open enrollment is typically conducted in mid- to late-November, the benefits enrollment process is a continuous one that really goes on all year. Each time a new full-time employee is hired, a part-time employee becomes eligible for benefits, or a current benefits-eligible employee experiences a qualifying life event, employers need to be ready to initiate the benefits enrollment process.
The following strategies can improve the benefits enrollment process for both employers and their employees:
Creating an effective communication process. Make it clear to employees who can answer their questions regarding benefits and enrollment. This may involve conducting one-on-one meetings with each employee prior to or during the enrollment process, hosting office-wide meetings or training sessions, or sending company-wide instructional emails.
Making resources available online and onsite. Providing easy-to-understand tools and resources helps lessen employee confusion during the benefits enrollment process. Keep plan information simple and accessible, and consider offering interactive resources like plan comparison tools.
Making employees aware of important dates as soon as possible. One of the biggest reasons open enrollment can be difficult is that the process is often rushed. Offering employees generous deadlines and sending out frequent reminders will not only keep employees happy, but is also likely to encourage more employees to enroll.
Last year, the Society for Human Resource Management and Kronos conducted a study of the impact of employee absence on organizations and employees. Unlike prior research, this study focused on the impact absenteeism has on co-workers.
According to key findings, the party affected most by unplanned absences seems to be colleagues - as the study shows that their perceived productivity loss is most affected (29.5% productivity loss for co-workers in the US). Co-workers report feeling more stressed when their colleagues are out, especially when those absences are unplanned.
Absences, planned or otherwise, are going to happen. People have lots of legitimate reasons why they need time off – child care, elder care, illness, appointments, vacations, etc. Organizations can't avoid absences completely, but there are things they can do to mitigate the impact of absenteeism in the workplace:
- Implement an absence policy
- Communicate the policy
- Encourage proactive communications between managers and staff
- Support flexibility
- Enforce the absence policy
- Provide incentives for excellent attendance
- Be realistic about absences during holiday periods
- Make controlling absenteeism a business priority
Over the last few years, ownership of LinkedIn contacts has become a continuing source of disputes. If employees decide, or are even encouraged, to connect with an employer's customers on LinkedIn, must they "unlink" with those contacts when they leave the company? According to a California federal court, an employee's retention of those contacts "might" be considered misappropriation of the employer's trade secrets.
In Cellular Accessories for Less, Inc. v. Trinitas, LLC, the court was asked to decide, among other issues, whether to dismiss on summary judgment an employer's trade secret misappropriation claim where the employer argued that a former salesperson's LinkedIn connections with its customers constituted a trade secret. The salesperson, David Oakes, established LinkedIn connections with customers of his employer, Cellular Accessories for Less, Inc., during his employment. Upon leaving Cellular and starting a competing company, Oakes retained his LinkedIn account and all of his connections.
Cellular then brought its case against Oakes and his new company, Trinitas, LLC, arguing that, by maintaining his LinkedIn contacts with Cellular's customers, Oakes had violated the employment and confidentiality agreements he signed with Cellular. In those agreements, Oakes agreed that he would not take "physically or electronically" any of Cellular's "proprietary information," including information regarding its customer base. Cellular argued that the fact that its customer information could be found on LinkedIn should not affect its claim that the information is a trade secret.
In opposition, Oakes claimed that Cellular encouraged him to use LinkedIn as a tool for garnering business, and that at no time did Cellular assert ownership over the LinkedIn accounts of its employees nor did it instruct its employees that the LinkedIn contact information of its customers could not be used without its permission. Oakes further argued that because his LinkedIn contacts were "viewable to any other contact he has on LinkedIn," they could not be considered a trade secret.
Because trade secrets are generally defined as information "not ... generally known to the public" and "the subject of efforts ... to maintain its secrecy," the court here focused on whether, and how, Oakes utilized LinkedIn's privacy settings. While Oakes maintained that his contact list was viewable to others on LinkedIn and thus not "secret," Cellular asserted that would not automatically be the case if Oakes had his account settings set to "private." Unfortunately, neither Cellular nor Oakes provided evidence to the court regarding Oakes's LinkedIn privacy settings and whether his account was publicly viewable.
As a result, the court decided that Cellular's trade secret claim could not be resolved on summary judgment because "issues of material fact" remained regarding the LinkedIn information. According to the court, the issue was one for a jury to decide. However, soon after the court denied summary judgment, the matter settled, leaving neither a court nor jury to decide the issue over the LinkedIn account in this case and continued litigation in other cases.
While there is no perfect solution, businesses can establish practices to better protect their trade secrets.
Agreements and Policies. Frequently update employment contracts, non-compete agreements, non-disclosure agreements and social media policies to redefine trade secrets in the context of online networking and spell out restrictive terms and conditions regarding the use of various social media platforms. Specify that the accounts remain the property of the company.
Training. Educate employees regarding the proprietary and confidential nature of customer information located in social media platforms, privacy settings, and how to avoid unwanted disclosure.
Business-Only Social Media Accounts. Require that employees' personal social media accounts remain completely separate from their business accounts, which should be linked only to a company email address.
Client Database. Establish a password protected internal database to which employees should add any client contact information that they obtain through social media or otherwise.
Employee Termination. Upon employment termination, voluntary or otherwise, terminate the employee's access to business accounts.
Thank you to everyone who attended our 25th Anniversary Celebration on Thursday, April 23rd! We have received such a wonderful outpouring of congratulations and best wishes from our family, friends, clients, and the local community. We are so grateful to have spent such a memorable evening with you and for your continued support.
Congratulations to our door prize winners!
- Jim Applegate, Apple Signs: Fitbit Charge
- Ray Mulliken, Mulliken Enterprises: Amazon Fire Table
- Cindy Penn, Creative License Studios: Fitbit Charge
We hope you had as much fun as we did! Be on the lookout for a little surprise coming soon to your inbox....