They found that AutoZone violated the Americans with Disabilities Act (ADA) when it failed to accommodate the disability of a sales manager.  At trial, the EEOC presented evidence that the employee was required to perform cleaning tasks that violated his medical restrictions and resulted in an injury and severe physical pain. The sales manager is disabled with permanent back and neck impairments. Under the ADA, a reasonable accommodation may include theelimination or modification of a non-essential job duty, or the transfer of a non-essential job duty to another employee.

AutoZone will also be required to report all requests for reasonable accommodations to the EEOC for a period of three years, and to maintain records of the company’s responses to such requests for a period of four years.

The court noted that the award was merited because the evidence supported the fact that the company’s managers “knew of but chose to ignore their obligations under the ADA” to accommodate the employee’s disability.

 

The Office for Civil Rights ("OCR") of the Department of Health and Human Services has announced an audit initiative under which it intends to conduct audits of up to 150 covered entities to review compliance with the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). The audit will focus on the HIPAA privacy and security requirements. The OCR will select a broad range of entities, including health plans and health care providers of all sizes.

Keep in mind that HIPAA mandates training of individuals who have access to protected health information (PHI). Failure to train (and to properly document training) could result in significant liability.

Similarly, failure to have compliant documents, notices, practices and procedures could subject the covered entity to substantial penalties and well as requirements to provide notification of breaches of the HIPAA requirements.

Plan sponsors should examine all business associate relationships. They should also ensure that they have updated their documents and properly documented all relationships.

 

Last week I presented some information on being a fiduciary. As a plan sponsor you should understand the distinction between "settlor" functions and "fiduciary" functions.

Settlor functions are those typically related to plan design, such as creation or termination (or even amendment) of a plan, determination of who the plan will cover and designing the benefit offerings. This is important because settlor functions are not subject to the same fiduciary status when making these decisions. For instance, the decision to amend or terminate a plan is a settlor function that does not give rise to a claim for breach of fiduciary duty. Similarly, the decision about what class of employees to make eligible for coverage would be a settlor function.

Fiduciary functions tend to be the "administrative" aspects of the plan. Fiduciaries exercise control or management over plan assets and have discretionary authority over the plan operation. So while the decision to terminate the plan may not be a fiduciary function, the way that you administer the termination would be. Likewise, while a decision to offer coverage to a specific group of employees may not be a fiduciary function, denying eligibility to an employee who thinks they are eligible would be. Fiduciary actions are governed by ERISA standards, while settlor activities generally are not.

When making decisions related to creating a plan, amending a plan or terminating a plan, it is important to separate those decisions made or actions taken in a settlor capacity from those decisions made or actions taken in a fiduciary capacity. There needs to be a clear delineation of the role you were playing at each point. When you are acting as both a fiduciary and a settlor, your actions will be given very close scrutiny by a court if they are challenged, so give them that same close scrutiny before you make them.

 

Large firms see a significant scale advantage when it comes to recruiting costs per new employee, according to a study from Bersin & Associates, a human-resources advisory firm.

Companies with more than 10,000 employees world-wide pay a median figure of $1,949 per hire, compared with midsize companies, which pay $3,632, and small firms, which pay $3,665.

Because small and medium-sized organizations tend to have fewer dedicated recruitment employees, they often have to outsource hiring, which can be very expensive.

Of the industries analyzed, manufacturers had the highest recruitment costs per hire, with median spending of $6,443. That's because those jobs require specialized skills like familiarity with particular types of equipment or software. Health-care companies had the lowest costs, at $2,127, because the skill and certification requirements for many medical positions, such as nurses, are rigidly defined, which simplifies hiring.

Other industry average cost per hire are:

• Business Services                 $5700
• Technology                            $4340 
• Retail                                       $3010 
• Banking/Insurance            $2530

• Voluntary turnover rates have dropped from 10.4% in 2009 to 9.1% in 2011.
• 62% of employers plan to increase compensation for their existing employee base while 32% will offer higher starting salaries for new employees. (Silkroad)
• Nearly two-thirds of Americans say sexual harassment is a problem in this country, and about a quarter of women report having been harassed at work (Washington Post-ABC News poll).