What is the FMLA and what does it mean for the military spouse?

What you don’t know can hurt you.  No, that is way too alarmist.  How about what you do know can help you!  To add one more acronym to your ever expanding vocabulary, KC-130, DFAS, VT-2, and now FMLA.  The Family and Medical Leave Act was first passed in 1993 to help employees who were ill or who had an ill family member.  In 2012 the Act was amended to include two entitlements to benefit military families.

There are very specific rules to even qualify for FMLA.  First, the employer has to be covered. Public agencies and all schools, regardless of the number of employees, are covered under the FMLA.  Private sector employers with 50 or more employees are covered, including joint-employer situations like employee leasing.

Next, the employee has to qualify for coverage.  You must work for a covered employer.  You must have worked for the employer for at least 12 months (not necessarily consecutively).  You must have at least 1,250 hours of service for the covered employer in the 12 months immediately preceding the leave.  And you must work at a location where the employer has at least 50 employees within a 75 mile radius.  More simply put, if you work for a big enough company, have been there at least a year, and work at least 25 hours a week on average, you will likely be eligible for FMLA.

If you and your employer are covered under the FMLA rules, you may be eligible to take up to 12 workweeks of leave in a 12 month period for one or more of the following reasons:  birth of a child or placement of a child with the employee for adoption or foster care; to care for a spouse, child or parent who has a serious health condition; for your own serious health condition.  And the new provision adds:  for any qualifying exigency arising out of the fact that a spouse, child or parent is a military member on covered active duty or call to covered active duty status.

Qualifying exi-what?  It means, a thing.  A situation, a circumstance.  OK for real, an exigency is that which is required in a particular situation, typically needing immediate attention.  The leave is there for military spouses or family members to address common issues that arise when a service member gets deployed.  Some examples are appointments for making financial and legal arrangements, military sponsored functions, and arranging for alternative childcare. 

Military Caregiver Leave is another new provision and it is longer.  You still have to be eligible (50 employees, at least 1 year and at least 1250 hours) but Military Caregiver Leave allows employees who are the spouse, child or parent of a covered service member to take up to 26 weeks of leave in a 12 month period to care for the service member who is undergoing medical treatment, recuperation or therapy etc. for a serious injury or illness incurred or aggravated in the line of duty.  This provision applies to the families of members of both the active duty and reserve components of the Armed Forces. 

There are a couple of important things to note about FMLA.  The 12 weeks (or 26 weeks) of leave does not have to be taken all at once.  It can be taken intermittently.  So if your pre-deployment appointments are spread over many days, weeks or months, you can take the leave when you need it.  Same thing for caring for yourself or a sick family member, it doesn’t have to be taken all at the same time. 

Perhaps even an even more important fact, FMLA has nothing to do with pay, it is only a job holder.  12 weeks of leave, doesn’t mean 12 weeks of getting paid!  It just means that the employee must be restored to his or her original job or to an equivalent job with equivalent pay, benefits and other terms of employment.  Your employer may require you to use your accrued paid leave to run concurrently (at the same time) as your FMLA leave.  So you may get paid for part of it depending on how much vacation and sick time you have available.  Your employer is also required to maintain your benefits as if you were still there. 

So now that you have the basic facts, if you wish to use FMLA, go talk to your Human Resources Department for specifics about how your organization handles this type of leave.  There are also fact sheets available on the US Department of Labor website.  They can be found here http://www.dol.gov/whd/regs/compliance/whdfs28.pdf and here http://www.dol.gov/whd/fmla/MilitaryFLProvisions.htm.

Birds of a Feather – Professional Associations

Everyone likes to connect with people that have similar interests and abilities, not just for fun, but work too.  There are professional societies, associations and groups for almost every occupation, job, business and pastime.  Make sure you know how to make the best use of them.

Joining the Flock - Getting Jobs

If you were trying to replace yourself in your current job, where would you turn for candidates?  I would turn to my colleagues in my profession.  Conversely if I am looking for a job, that is where my search would begin, even if I don’t yet know those colleagues.  Professional groups make it easy to seek out those people who can help you.  Go to the local association meetings.  Even if you don’t know which association or group you should be looking for, you can start with something generic like a Rotary Club or a Chamber of Commerce meeting.  Most people there will either know where you should turn next, or they know someone who will know.  Aside from the face to face meetings and getting to know the other professionals in your city, there is typically a place to find targeted job postings.  There may also be a place to post your resume so members of the group can look you up when they have an opening available.  If the group doesn’t have a job board or resume bank then don’t be shy about handing out your resume at a meeting.  (Make sure it is on one page!)

Feathering that Nest - Keeping Jobs

Once you are in gainfully employed, you probably want to stay that way!  Keeping up to date with the latest and greatest in your profession is absolutely vital to your success.  Whether it is interior design or human resources you need to remain informed about the latest trends, practices or laws.  Professional associations and societies typically publish a newsletter, magazine, blog or website (or all of those things).  Discussion about the practical applications of those changes and how they will affect business is a valuable teaching tool.  Pay attention and participate in those discussions because there is always something to learn from your colleagues.  HR and benefits is constantly changing landscape of legislation and legal decisions.  I would not be doing a good job and protecting my company if I wasn’t getting updates and information from my professional society. 

The ‘V’ Formation - Giving Jobs

Back to the original question….if you are about to PCS and need to replace yourself, where would you look for someone just like you?  Perhaps there is a military spouse that has your set of skills.  Awesome!  Helping out one of our own would be fantastic!  But if that won’t work out, you need to find a person with similar expertise.  Hiring from within your organization may be an option, or perhaps you can poach from a competitor.  You are more likely to find someone you consider to be qualified through a professional association.  Now forget about YOUR area of expertise, let’s say you are an accountant and your firm has a need to hire a public relations specialist.  You and all of your accounting friends don’t know any PR people, but there is an organization for PR people that you can access.  Posting positions on the websites for both local and national associations is much less expensive than a posting in the paper, and most of your responses will be from qualified professionals.

It’s a Different Flock

Your personal life is full of military jargon, acronyms and regulations, and it is comfortable.  Our relationships with other military spouses are invaluable.  The lessons, advice and help that are passed from spouse to spouse are part of what make our community so special.  Your professional networks allow you to step away from all of that, and will allow you to stretch yourself and move outside the cocoon of military life in which we sometimes live.  It lets you be around some other people for a while.  (Other people who don’t automatically ask you what your husband flies!)  I feel strongly that my profession gave me the ability to grow as a person separately from my husband and the military.  It made me more of who I am and a much happier person than I was as a trailing spouse.

A Whole Different Animal – Personal Networking

You have a past….. we all do.  Use it!  Recently I was talking to one of my college friends about her business and the subject of administering a 401(k) came up.  I was able to learn a little more about my profession from a different point of view.  With the availability of social media it is easier than ever to be in touch with all of those old friends and acquaintances.  You may find that your best friend from seventh grade is in the same profession as you and lives in the city where you are about to move.  Even if you stole her boyfriend in the eighth grade, I bet she has forgiven you and she can help you out with an introduction at the next association meeting.  Or maybe that friend is in a different profession, but she knows someone who would be able to assist you.  Would you be happy to pass a name or a resume along?  Surely someone would be happy to do it for you.

Originally published for the National Military Spouse Network (NMSN)

The Affordable Care Act: The Effect on Small Business

OK, my previous post was dashed off in a moment of anger after getting our health insurance renewals.  I was able to calm down and clean it up a bit, OK a lot.  This was first published January 5, 2014 on the NACTT Academy Newsletter website in a more professional, less sassy manner.

The Affordable Care Act: The Effect on Small Business

Is it really affordable?

In my experience, not so much. We recently received our medical insurance renewal information for our small group for 2014. We have (scratch that, HAD) a pretty rich plan. Not quite Cadillac, but the boss cares about his staff and wants to provide us with a good plan. Well, that plan design is no longer offered by the insurance company, so we don’t even have the opportunity to keep the status quo. As a result, our renewal percentage increase is kind of abstract because the plans don’t match up, but we can still compare the costs to last year. Yeah, those costs went up . . . A LOT!!!! The two plans that are somewhat comparable are both about 13% higher than the plan we had in 2013. There is a worse option for only a 3% increase. All of our options have a really bad change to the prescription plan. We can completely change insurance companies for less money, but that option offers fewer doctors in the network. The result is that as a small business, we now have pretty crappy choices. Taking the lesser of all the evils is not how one should decide on a health plan.


Where do these rates come from?
We are a small group, so we are 100% community rated. A mid-sized group is usually half community rated, half experience rated. Over approximately 200 employees, the group is usually experience rated. There has always been some age banding in determining the rates for insurance. Assuming a staff with 20 employees and they are all over age 50, the coverage would have always been more costly than a staff of 20 people in their 20s. However, the Affordable Care Act (ACA) has taken the age factor to an extreme. There is a different cost for every year over age 20, up to age 65. Our oldest staff member is going to cost about $850 a month for single coverage. The youngest staff member will be about $290 a month. To add insult to injury, the price can change with a new hire. Up until 2014, the insurance companies took a snapshot at the time of renewal and that was the rate for the entire year. With ACA mandating different prices for different ages, if we replace a 30 year old data entry clerk with a 60 year old data entry clerk, the combined rate for everyone will go up mid-year.


So we should only hire young people in order to keep our rates down?
While I am sure that the administration of one Federal program did not have the intention of violating Federal age discrimination law, this seems to be the outcome. A side effect of Obamacare on small businesses is that it encourages discrimination against older workers. As said above, the difference in the single premium for the oldest and youngest employees is almost $500 a month. As a small business person, how can we not take this enormous difference into consideration when hiring? Of course, one is supposed to hire based on skills and ability to perform the essential functions of the job. I get it. But a premium difference of $500 a month is a lot for one employee. However, I strongly urge caution in making the mistake of a potentially discriminatory hiring decision.


Why so much change in cost?
There is uncertainty in the insurance industry as to how much the ACA changes are going to cost. No lifetime maximums, no pre-existing conditions clauses, and adding pediatric dental and vision evaluations will all add up to dollars that the insurance companies were not spending before and will have to spend now. That being said, the insurance companies will definitely be profiting . . . they always do. Those profits will come from businesses, like us, not individuals.


But doesn’t everyone have to pay into Obamacare?
Sure, on paper, everyone has to buy insurance. But in real life, it isn’t working out that way. The insurance companies, as well as the economic analysts who tried to build the ACA, hinge the financial success of the Act on healthy, young Americans buying health insurance. However, according to a poll just released by the Harvard University Institute of Politics, less than one-third of Millennials (ages 18-29) say they are likely to enroll in the Obamacare exchanges.


What else do you need to know?
Be sure to read your plan document thoroughly, especially the subrogation and indemnification clauses. At one time there was thought that insurance companies would want employers to indemnify them for not fulfilling ACA requirements. Our plan doesn’t have any of that language in it. Make sure yours doesn’t either.


If you are a solo practitioner, you can buy coverage on the exchange. You may see some insurance companies you have never heard of. Google them. It is likely that the unfamiliar company name is actually one of the big companies. They are simply using a d/b/a for the book of business that comes out of the exchanges. Provider networks for the various companies should also be on line, and will allow you to see if your doctor is in the new plan’s network.


Is this all going to work and be good for business and the employees?
I have discussed this question at length with colleagues and brokers. Unfortunately, we all agree that we have no idea. For all our combined experience and expertise, we can’t tell what is going to happen. What is certain is that more change will come. Tweaks will be made, whether under Obamacare or some other name. Also certain is that the insurance companies will make lots of money. The increase in premium and decrease in plan design benefits is allowing the insurance companies to pad their coffers for the unknown that looms for the next few years over the industry. Who knows, maybe it will all be affordable and next year we will get a premium decrease. HA HA HA!!! I crack myself up sometimes!
 

Will Obamacare Encourage Small Employers to Discriminate Against Older Workers?

I just got our renewal for our small group for January 1, 2014.  Affordable Care Act my a$$.

We have (scratch that, HAD) a pretty rich plan, not quite Cadillac, and not anything close to a union type plan, but the boss cares about his staff in that he wants to provide them with a good plan.  Well, of course, that one is not going to be offered by the insurance company anymore.  But I can keep my plan if I like it, right Mr. President?

So our renewal percentage increase is kind of abstract because the plans don’t match up, but we can still compare the costs to last year.  Yeah, they went up.  A LOT!!!!

So the two plans that are comparable are both about 13% higher than the one we had, there is a worse one for 3% or I can completely change companies for less, but there are fewer doctors available in that network.  Talk about some crappy choices!

All of that aside, we are now rated by age bands.  For a small business, that is a big deal.

We are a small group, so we were totally community rated.  A mid-sized group is usually half community rated, half experience rated.  Once you get over about 200 employees you can usually be totally experience rated.   

So my oldest staff member is going to cost me about $850 a month for single coverage.  My youngest staff member will be about $290 a month.  As a small business person, how can I not take this huge difference into consideration when hiring?  Of course you are supposed to hire based on skills and ability to perform the essential functions of the job.  I get it. But a $500 a month difference is a lot for one employee.  

What a mess?  Don't even get me started about how I am supposed to budget for this.

  

The Do's and Don'ts of Salary Negotiation

YAY!  You got the job!  Congratulations!  Suddenly the joy turns to fear.  Here it comes, you are at that scary moment in the process - time to talk money.  Cue the anxiety and questions that start scrolling in your mind:

• Do I ask a lot so they think I am worth it?
• Are they going to low-ball me?
• If I say a number that is too low I am shooting myself in the foot?
• If I say something too high they may change their minds and ask me to leave.

Don't stress.   As we do for all other aspects of our lives, a little research and some preparation will make for a smooth conversation.

DO - Research, research, research!  You can find many tools on line to help you figure out a general salary range for your profession and location.  Sites like Salary.com or Indeed.com provide calculators for various cities and different professions.  They may not always be right on, but you will at least have some idea on where you should be when the time comes to start a salary negotiation. 

DO - Use your professional networks.  You may have used some of these same networks to help you find the job that you have just been offered.  Make a salary range question part of your initial conversation with others in your profession.  Asking for a range or budget amount allows people to be a little more open with information.

DO - Use your own experience.  Only you know what you were making before.  You can gauge your value based on your new city compared to the old city, your old position compared to the new position.  Of course if you have been in your profession for awhile, you will already have an idea of what you are worth.  You may also be able to find more specialized information about salaries by searching for local surveys on-line.  Your own job search might provide you with good information too.  Some companies advertise the range to be offered for the open position.

DO - Establish your floor number.  You need to know how low you can go.  Unless the job is your life's passion, it is still just a job, and another one will come along soon.  If you take a job that you know will be frustrating if you aren't getting paid what you deserve, you may come to regret that decision and perhaps resent the people at the organization. 

DO - Evaluate the offer as a whole.  Keep in mind that as a military spouse, you may not have a need for the health plan that is offered.  Some organizations may offer a cash-in-lieu of health insurance option, but if they do not you may be able to negotiate more salary because you won't be taking the insurance.  You are not likely to make the equivalent dollar amount translate to salary, but one to two hundred dollars a month would not be out of the range of most cash in lieu programs.  There are also other considerations like: your commute, cost of child care, lunches out and dry cleaning.

DON'T - Have unrealistic expectations. Maybe you were making six figures at your fancy office in Washington DC, but Fallon, Nevada is not going to offer you the same opportunities.  It may be time to focus on expanding your knowledge base and experiences.

DON'T - Assume just because your rent tripled, your salary will too.  While cost of living does have some bearing on salaries, there is not a direct correlation.  BUT, you have two or three more years of experience since the last time you changed jobs, so that should help.

DON'T - Be afraid to ask.  Everything is negotiable, salary is not the only thing on the table.  If the vacation accrual schedule isn't what you had hoped for, it doesn't hurt to ask for some additional days off.  Since it doesn't directly compute to a dollar figure, the company may be more likely to say yes to that request before they would say yes to an increase in salary.  But,

DON'T - Demand.  And don't take the negotiations too far.  One time back and forth is enough.

In our current economic situation, there were a lot of candidates for this job and YOU are the one they picked.  They want you and respect you enough to listen to a reasonable counter offer.

You Give Us All A Bad Name: When HR Departments Suck

I see them on TV, I read about them in Legal Updates, they are out there.  Bad HR Departments.  In the business world management mistakes are abundant, but it is so much more disheartening to my profession when laws and policies are broken by those assigned to uphold them.  We know better, or at least we should.

HR Professionals walk a fine line between serving the company and serving the employee.  Fine line doesn’t even do it justice.  It is a faint, barely visible, thin gray line.  We are advocates for our staff members, within the bounds of the corporate policies and procedures and legal protections.  We should be advocates for our staff, even if they don’t know they need us.

          

Following is a recent account of a series of interactions with an HR Department that clearly didn’t have its employees’ best interests at heart.

An employee for a Texas based banking institution (one of the oldest and largest in the state) was fired and the reason given was that it just wasn’t working out.  The at-will doctrine says that that is an OK reason for termination, but HR should have known better; perhaps asked a question or two before letting the axe fall.

This employee had just passed his one year anniversary with the company.  There had been multiple absences for illnesses throughout his time there.  But the illnesses and injuries were not only real but quite obvious, including surgeries and casts, physical therapies and doctor’s notes.  It wasn’t a case of a faker.  HR should have known that this employee was eligible for protection under FMLA.  The termination happened after a four day absence from work for an infection for which he had a doctor’s note.  And on his last day they made him finish a project before firing him at 4 o’clock.  So he did good work, the manager didn’t like the time away, regardless of the reason.

After he was previously given a written warning for absences he asked if there was a process or platform through which to dispute the reasons for the write up, the HR Manager just shrugged.  To top it all off, the information sent to him in his COBRA letter was unlawful.  Dates were wrong, time frames given were wrong.  This HR Department was all kinds of wrong!

Was this employee the type of person we want on our staffs?  His work was really good, he was just frequently ill.  So yes, and no.  Could have accommodations been extended as long as the essential functions of the job are done?  Absolutely, it’s kind of the law!  Should HR have known that FMLA protections were in order?  Yes, again with the law.  Does the company have a potential discrimination suit on their hands?  Oh yeah!!!!

Unlike line managers or other department heads the relationship between HR staff and the termed employee lives on.  And sometimes on and on and on.  Health insurance, retirement accounts, dates of employment, job descriptions, W-2’s, the list is long for reasons to stay in contact.  The relationship really has to change to one of advocacy for that former employee.  They don’t know what they don’t know about ending employment with you and beginning it somewhere else. 

So HR, on what side of the thin line do you come down?  Since it is your job to protect the company from litigation, I have to say it should be both.  What is best for the organization?  What is best for the employee?  Just because the employee didn’t ask for FMLA doesn’t mean he shouldn’t have gotten it.  When you are about to terminate someone, a thorough analysis of the situation should be conducted.  Even a previous write up doesn’t protect you.  The situation may be quite different, especially when there is a service milestone. 

Aside from evaluating each situation your HR staff really should have a better answer than a shrug!  And a COBRA letter with inaccuracies is just plain negligent.  It doesn’t have to be done in a hurry and it only has a few things that have to be changed for each person.  If you are the HR Manager that deals with terminations you need to know your COBRA law and letters inside and out.  There is no excuse for getting that wrong. 

So all of you HR Directors out there – PLEASE make sure you know what your staff is doing!  And for all of you CEOs out there – PLEASE make sure there is a solid training system and budget for your HR staff.  A big, fat discrimination lawsuit will cost WAY more than a conference or two.

Employer Benefits -- The Military Spouse Perspective

So you have landed that job and you are so excited to be there!  And then you sit down with Human Resources on that first day and they give you the fire hose treatment of policies and benefits.  As if your life as a military spouse isn't already full of initials and acronyms, now you get more at work.  So here are a few things you want to know, but are afraid to ask.

What does vesting mean?

Vesting refers to how much of the employer contribution to your retirement plan you get to take with you when you leave the job.  Any money that you contribute to the plan is yours; there is no time commitment for that money.  The money that the company puts in may be subject to a vesting schedule.  One type of schedule is called graduated.  For example, you may be vested in 20% of the employer contributions after your first anniversary, 40% after your second, and so on up to 100% vested after five years.  Some companies have a cliff vesting schedule, where if you leave before your two year anniversary you don't get to keep any of their contribution, but if you stay until after that two year mark you keep 100% of their contribution.  The reason this is important to consider is because you know that you will likely have to PCS in two to three years, you know that you will not be able to take all of your employers contributions with you.  So if the employer is taking a hard line on salary negotiations because they have such a good retirement contribution you need to keep that timeline in mind.

What are my health care options?

The hiring manager or human resources representative will tell you about the type of health plan(s) the company offers.  Even though you may have TRICARE you should pay attention to these options, particularly the cost of the premiums for the plan.  It is another piece of information to help you with your salary negotiation.  Some companies have a cash-in-lieu of health care option, usually between $100 and $200 per month.  The dollar amount will not be the equivalent to the cost of the premium, it likely won't even be half.  If they don't offer such an option then use the fact that you may not need medical coverage to try to get the salary bumped up.  If you do choose to take the company sponsored health plan, then that plan will be the primary coverage for you and TRICARE will become a secondary payer. 

What is an FSA?

FSA stands for Flexible Spending Account.  These accounts allow you to take money out of your check pre-tax in order to pay for out-of-pocket medical expenses and child-care expenses.  At the beginning of the year you can elect a certain dollar amount to go in to the account, once you incur an expense you send in a claim form and a receipt and you get your money that you paid in to the account back and you have not paid taxes on it, so it is like a 20-30% discount depending on your tax bracket.  The catch to these accounts is that you have to use the money that you elect to put in to them or else you lose the money.  For example, I put $300 in to my medical FSA to buy new glasses and then I never get around to getting my eye appointment by the end of the year.  Unless I can come up with $300 of other out-of-pocket medical expenses (co-pays, deductibles, dental work), then I lose that money.  Talk to your HR department about specific dollar limits for the medical FSA.  These accounts are really good money savers as long as you have a handle on how much your out-of-pocket costs are.

So what questions do I ask?

Hopefully many of these questions will be answered in your orientation, so you should try to take some notes because there is likely to be a lot of new information on those first couple of days at work.  So pay special attention to the following:

• Recognized holidays - Not all companies recognize federal holidays like President's Day or Veteran's Day, though schools and day cares may be closed on those days so you may have child care issues.

• PTO (paid time off) or Vacation and Sick pay - Many companies have gone to a combined bucket of PTO days rather than vacation and sick days. Either way, make sure you find out how those days are earned and when you can start using them.

• My next raise - How often are salaries evaluated? And what are they evaluated on, timing, merit, production? Is there a bonus structure and what criteria have to be met for those, a manager's discretion or on performance measures?

• Probationary period - What does it mean to this company? Can I use vacation during this time? Do my benefits not starts until it is over? Do I get a review in 90 days? Is there a potential for an increase at the end of the period?

• Potential for flexibility - If your spouse is doing work-ups or is deployed, he or she may not be available for household or child care emergencies. Is your new employer understanding that you are essentially a single parent? What are the options for working from home or staggering hours to help you run your household more efficiently?

• FMLA - This is the Family Medical Leave Act and does provide some protections for military spouses, but the rules are very specific. Make sure you ask your HR person if your new company qualifies under the Act.