3 Common Employment Law Questions Answered

Sometimes employment law can be difficult to comprehend. Here are three common work place situations and their legal ramifications.

1: DISMISSAL DUE TO ILLNESS

There are three potential areas of legal exposure:

· unfair dismissal;

· unlawful termination; and

· discrimination

From time to time an employee will have to leave your employment due to long term health issues. They may decide to resign or you may have to eventually consider dismissing them. It is beneficial to consider as many ways possible to help them back to work – dismissal should be a last resort and could be deemed unfair if not managed properly.

If continued employment is no longer achievable because there are no reasonable adjustments that can be made, it may be fair for you to dismiss them.

The Fair Work Act 2009 states that an employer must not dismiss an employee because the employee is temporarily absent from work due to illness or injury.

The Fair Work Regulation 2009 provides that it is not a “temporary absence” if the employees absence from work extends for more than 3 months, or the total absences of the employee, within a 12 month period, have been more than 3 months. The employer still requires a valid reason to dismiss the employee, even if the employee has been absent on unpaid leave for three months or over.

We suggest you ask the employee to provide medical information on his capacity for work and what support he might need to return to work.

2: EVIDENCE OF ILLNESS

You can insist on employees providing evidence that would satisfy a reasonable person that they are entitled to sick leave, for example, a medical certificate or statutory declaration. That being said there is no specific timeframe as the timeframe required is “as soon as practicable”.

For this reason you should devise a written policy that stipulates that your employees provide such information within a specific timeframe. Your policy should also specify that your employees inform their manager directly of their absence (when possible), or phone their manager within a certain timeframe to explain why they cannot make it to work and when they expect to return.

3: NOTICE OF REDUNDANCY

When dismissing an employee it is necessary to give them notice. The notice commences when the employer tells the employee that they want to end the employment. If you notify them of their redundancy just before leave, the time spent on annual leave will count towards their notice period.

What Happens After Filing an Initial Claim for Long Term Disability

Filing an initial claim for Long Term Disability (“LTD”) benefits is very time-consuming and exhausting for claimants. It is a juggling act of balancing the medical care necessitated by your disability, the down time needed for you to rest and heal, and the seemingly never ending requests for information and documents thrust at you by the claims administrator or insurance company. However, it is important to understand that once you are approved for LTD benefits, the juggling act does not stop there. Throughout the duration of your LTD claim, you will be subject to ongoing and period eligibility reviews. During eligibility reviews, the plan or its administrators will be reviewing your evidence to determine if you still meet the test for disability. If during the review, there does not appear to be enough evidence to support disability, your LTD benefits may be denied. Therefore, it is important to understand when such reviews may take place and how to advocate for your claim during an eligibility review in order to avoid wrongful LTD claim denials.

When will your claim be subject to ongoing eligibility reviews?

Unless your LTD plan states otherwise, approved LTD claims are typically subject to ongoing and periodic reviews for eligibility. This means that the insurance company or administrator can contact you throughout the duration of your claim to ask you for ongoing proof of disability including evidence like medical records, income and work documents, independent medical testing, social security documentation, functional capacity testing, and activities of daily living questionnaires. Unless your plan states otherwise, there typically is no schedule for reviews that must be followed or minimum amounts of time that must elapse before another review may be commenced. Pursuant to most LTD plans, when, how often, and for how long ongoing eligibility reviews take place is at the discretion of the plan and/or claims administrators. While an eligibility review and can typically occur at any time during the life of your LTD claim, such reviews most commonly occur when the test for disability changes, as defined by your policy.

Most LTD policies contain a test for disability that changes after the expiration of a period of time. Generally, most LTD policies require you to prove that you are disabled from working at your own occupation for the first 24 months of disability and then after that require you to prove that you are disabled from working in any occupation. You must read your individual LTD policy to determine your test for disability and whether or not it contains this time-based change. However, for policies that contain a time-based change like this, a new eligibility review is almost always commenced in the months leading up to the 24-month test change deadline. Depending on the administrator for your plan, you may even see this test change eligibility review begin as early as 6-9 months before the 24-month test change deadline.

How do you know when your previously approved claim is subject to a new eligibility review?

Unless your plan states otherwise, there is no formal notice that is required to be provided to you to advise that an eligibility review is taking place. However, many insurance companies and administrators do write to you and advise you that they are reviewing your claim for ongoing eligibility. Such letters are often accompanied by requests for documents or a notification that medical records have been requested from your doctors. Even if you have not been informed in writing that you are subject to another eligibility review, there are clues your can look for that often signal a review is taking place. If you have been receiving LTD benefits for some time and then suddenly the following requests or demands are made, it is likely that another eligibility review is taking place:

• Requesting that you or your physicians provide updated medical records;
• Advising you that previous requests for updated medical records were not fulfilled by your medical providers;
• Asking you to fill out an Activities of Daily Living or Disability Questionnaire form;
• Asking your physicians to fill out new Attending Physician Statements or functional impairment forms;
• Realizing that you are be followed or filmed by undercover surveillance agents;
• Receiving phone calls from a claims analyst asking you to provide oral updates on your medical conditions, activity level, daily routine, work history, and income;
• Asking you to allow a representative to interview you at a home visit;
• Requiring you to attend an independent medical evaluation (“IME”);
• Requiring you to attend a functional capacity evaluation (“FCE”); and
• Asking you to fill out functional capacity forms indicating how often and how long you can engage in specific activities.

While the above list is not exhaustive of all of the activities that might take place during an eligibility review, these are some of the key indicators that a new review is underway.

What should you do if you are subject to an LTD eligibility review?

When it comes to your LTD claim, you are your own best advocate and you should never become complacent about your eligibility status. This means that once you believe you are the subject of a new eligibility review, you must spring into action to make sure that all requests made by the insurance company for records, evidence, evaluations and testing are complied with fully. You should never assume that just because a letter requesting medical records or other documents was sent directly to your treating physician’s office that the office or physician will actually fulfill that request. One of the most common reasons that LTD benefits are denied during an eligibility review is because the medical provider failed to send updated medical records or failed to fill out a new attending physician statement as requested. Below are actions you can take to make sure that your LTD benefits are not denied as a result of an eligibility review:

• Do not become defensive or obstructive. During eligibility reviews most LTD claimants feel as if they are being harassed, picked on, or singled out by the insurance company or a claims analyst. As a result, they sometimes refuse to comply with requests, get argumentative with claims analysts, or do not bother to send in additional documents. Remember, claims analysts typically maintain notes about all of your conversations and you do not want to give them the opportunity to fill your administrative record with disparaging notes. Further, unless there is a provision in your policy prohibiting the actions or requests taking place, there is likely nothing you can do to prevent it. Ignoring or refusing requests for information or documents will almost always cause your LTD claim to be denied.

• Timely comply with all requests for documents and information. It is your responsibility to ensure that all medical records and documents requested are gathered and returned to the insurance company in a timely manner. If your disability causes you difficulty with your ability to gather and submit documents, you should contact your claims administrator and explain this or ask for additional time to submit documents if necessary. You should always keep a copy of anything you send in for your claim, with proof it was sent, in case it does not reach the appropriate claim analyst and you need to resend it.

• Follow up with your medical providers to make sure that they complied with all requests for documents or information. If you ever receive a letter indicating that your medical provider has not complied with a request for documents, you should immediately contact that provider about the issue. You must explain to your medical providers that if they do not comply with the ongoing requests for documents and information, your LTD benefits, and thus your monthly income and ability to pay for your medical care, may end. If you have concerns that your provider will not comply with the request, you should collect and send in the documents on your own. You may contact your doctor’s office or medical records department directly for information about how to request your medical records.

• Comply with all requests for IME’s and FCE’s. It may feel harassing or unnecessary to have to attend IME’s and FCE’s; however, if you refuse to attend you may be denied your LTD benefits. Before you attend, you should check with your treating physician to make sure that you are medically cleared to attend the evaluation or test. If you are not cleared by your treating physician to attend, you should inform the claims administrator and ask your treating physician to submit a written explanation of why you may not attend. If you are cleared to attend, you should ask to receive a copy of all IME and FCE reports so that you may review the medical information that the insurance company is collecting about you. Do not be surprised if you get resistance to such requests as some insurance companies have a policy that they will not release this information to you until the eligibility review is complete.

Remember, when it comes to ongoing eligibility reviews, you are solely responsible for ensuring that all requests for additional information are completed. If you become complacent or assume requests for information are being taken care of, you are putting your LTD benefits at risk. You must be the champion of your LTD claim.

ABOUT THE AUTHOR: Attorney Elizabeth Schmidt, Alan C. Olson & Associates, S.C.
Attorney Elizabeth Schmidt’s practice is devoted exclusively to the representation of plaintiffs in employment law and disability benefits matters. Attorney Schmidt advocates for the right of employees to receive wages, be free from discrimination, and have a safe and healthy work environment. Attorney Schmidt represents employees exclusively in employment law matters under state and federal laws including the Wisconsin Fair Employment Act, Americans with Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, and Title VII. I also assist clients in the pursuit of short-term and long-term disability benefits, including filing lawsuits under state and federal laws and ERISA. Attorney Schmidt works closely with each client to ascertain their individual goals and provide the information necessary to make informed decisions. Attorney Schmidt believes communication is the key to obtaining successful outcomes and client satisfaction.

How not to sugarcoat a bad employment report

UC Berkeley economist Brad DeLong calls “nuh-uh” on the Obama administration’s wan attempt to put the best face on Friday’s dispiriting employment report, pointing to the “absolute and total complete disaster” lurking not far beneath the “flat-lining employment-to-population ratio.”

Jason Furman, the White House chief economist, underscored that the private sector has added jobs for 46 consecutive months, though he could hardly avoid noting that the December figure was a meager gain of 74,000 (attributed by most to that all-purpose winter rascal, the weather). The overall unemployment rate is still “trending down,” Furman said, to 6.7% in December, the lowest since October 2008.

Furman acknowledged, as how could he not, that the sour note in the statistics is the rate of long-term unemployed (those jobless for more than six months), which is tenaciously high.

DeLong’s gloss focuses on a trend unmentioned by Furman, which is that the reason for the decline in the unemployment rate is that “labor force participation is falling.” If those dropping out of the labor force fail to return once the labor market strengthens, he observes, the harvest is “a permanent reduction in the efficiency of the American economy at matching potential workers who could use jobs with potential jobs that could use workers, and a permanent injury to America’s wealth and productive potential.”

This trend is hard to miss. As Heidi Shierholz of the Economic Policy Institute observes, labor force participation is at its lowest level in 35 years. She estimates the number of “missing workers”–those not actively seeking work but willing to work if jobs were available–at 6 million. If they were actively job-hunting, the unemployment rate would be 10.2%, not 6.7%.

What the White House numbers obscure is that the job market still stinks on a near-historic scale, for a recovery. There are an average of three job seekers for every opening, and the mismatch appears in virtually every economic sector–professional services, retail trade, mining and logging, construction, manufacturing, you name it. So this is not a mismatch of skills, but a dearth of opportunity across the board.

Shierholz points to the collapse of public-sector employment as a leading culprit. Austerity took hold in the public sector just as state, local and federal government employment was most needed to pick up the slack of declining private jobs. Since June 2009, she calculates, the public sector has lost 728,000 jobs. To keep pace with population growth, the sector should have grown by 750,000. About one-third of the devastating gap of 1.5 million jobs has been in local government education, mostly K-12. The budget assistance offered state and local governments through the federal stimulus program ended in 2011, and this is the outcome.

All these factors give the lie to the conservative notion, put forth by people like Sens. Rand Paul, R-Ky., and Marco Rubio, R-Fla., that it’s the availability of unemployment benefits that is suppressing employment growth. We’ve dealt with their fatuous arguments here.

They seem to think that if these slackers simply were kicked out of the hammock represented by jobless benefits, they’d get cracking and find jobs. The hard, cold figures show that there aren’t enough jobs. As a result, the cutoff of benefits foisted on the long-term unemployed by an indolent Congress only has the effect of reducing economic demand further, which makes it harder for them to find jobs.

The Congressional Budget Office quantifies this effect. Continuing the emergency unemployment benefits through the end of this year, it says, will increase gross domestic product by as much as 0.3%, and employment by as much as 300,000. What it’s telling Congress, in other words, is, if you want the dismal employment picture to continue, fellas, just keep doing what you’re doing. Which is: nothing.

Preventing Sexual Discrimination in Chinese Employment Law

Although China has established laws to ensure fair treatment and equality in the workplace for all its citizens, the country is still some way from achieving employment laws that match the western world’s treatment of employees.

Discrimination in employment is not a new occurrence in The People’s Republic of China, but as the country continues its recent progression of economic and social reforms, the Chinese government has increased its desire to end the sexually discriminatory employment policies that exist throughout the country. This includes upholding laws that forbid jobs to be advertised with gender specific requirements, like those that state applicants should be “male only” or “male preferred”.

A recent example of legal action against the unfairness of China’s labour and employment laws occurred in Beijing, where the private training institute Juren School was sued by a young female job-seeker named Cao Ju, who asserted that her application for the position of ‘administrative assistant’ was snubbed at the expense of the company’s preference towards male hiring employees. This is an unquestionable case of discriminatory behaviour as the job advertisement published on the internet clearly stated that men only need apply. Miss Ju sued for RMB 50,000 (£50,000) compensation and demanded an apology for her sufferance. The case was eventually settled by both parties in December 2013, with an apology and recompense of RMB 30,000 (£30,000) being awarded to the plaintiff.

This case is of particular interest in recent Chinese employment law because it is considered to be a pivotal moment of change in China’s discrimination practices and a sign of the country’s positive social alterations. The employment law at the centre of this case is China’s Employment Promotion Law which was brought into legislation back in 2008. This law forbids sexual discrimination from existing within the Chinese employment process, but despite it being enforced for nearly six years, sex discrimination has often been overlooked. The Beijing case is acknowledged as the first time that the Employment Promotion Law has been genuinely upheld in a Chinese court, whereas past claims of unfair exclusion from job opportunities were not taken seriously by employment law solicitors.

It is hoped that the result of this case will not only end sexual discrimination in Chinese employment law, but also encourage other people who have been victims of other kinds of discrimination to come forward, regardless of the prejudice they have faced, thereby encouraging anti-discrimination litigation that will eventually bring complete equality to Chinese employment.

If you feel you have been on the receiving end of unfair employment law legislation, contact Nationwide Employment Lawyers to assess whether you are entitled to compensation.

Please note that whilst every effort is made to maintain accuracy of the content in this article; we cannot take responsibility for any errors. This author is not an Employment Lawyer or HR Specialist and this cannot in any way constitute a substitute for Employment Law advice. All facts should be cross-checked against other sources. Should you require specific Employment Law advice, then we recommend that you contact Nationwide Employment Lawyers.

Simple trick that will make people open your emails

I get more than 500 emails a day, on 4 different accounts. It’s hard to pay attention to all of them. There are emails you know you can ignore, and some you know you have to read. But there are so many you simply don’t know.

The trick to notice anything is for it to stand out. But how do you get an email to stand out? There are not too many elements to an email header that you can play with.

This reminds me of my first trip to Tokyo. The sheer amount of street advertisement was overwhelming. How can anyone see anything here? How can one advertisement stand out over the others? It was impossible for me to notice anything among all the colors and pictures all around me.

Except for one advertisement that caught my attention. I don’t even know what the street “sign” was for, but there were several people (live…) who were strapped to the building wall, playing soccer with a ball held by a string. This is how far you needed to go to grab my attention.

So what about email? There used to be a time when everyone used the “high priority” red exclamation mark to let me know that their email was more important than any other email in my inbox. Well, at least it was more important to them. And very soon, almost all emails in my inbox were marked with the red exclamation mark, and no single email was unique enough.

Related: 25 best jobs in America, according to the employees

What did I feel when I saw those emails? I felt that someone was thinking that their message was more important than anything else in my inbox. I felt they were arrogant, self-centered, and I developed an allergic reaction to those emails. Those would now be the email I open last. Not first.

But after a while, the percentage of emails marked as high priority declined, as we got desensitized to them, and they became less effective. One day I noticed a unique email. Instead of being marked as high priority with the red exclamation mark, it was marked low-priority, with the down blue arrow. I opened that email first. Why? For one, because it looked different. When 20% (or more) of my inbox was still marked with red exclamation marks, this one was the only one marked with the down blue arrow. Second, I felt that someone was telling me: “hey, I sent you an email, but it’s not very important. Get to it when you get the chance. Do your more important stuff first.” I felt that the sender was considerate of my time. He was not arrogant. On the contrary.

So I opened that email first. Even though it was the only one marked “low priority…” I looked at my inbox just now. I have 919 emails. 23 are marked high priority. None is marked with the low-priority down blue arrow.

Opportunity? Try to mark you next email with the down blue arrow. Until everyone catches on…

3 actually useful job perks you didn’t know you wanted

These days, it’s all about the perks: companies, possibly in lieu of an abundance of jobs or exorbitant salaries, have made an effort to outdo each other in the perk department. Netflix upped the ante in 2015 by announcing a year of paid family leave, and Facebook went as far as to offer egg freezing. And while those are certainly offers that will make you pause, the majority of us not working at the world’s most sought-after tech jobs may wonder what’s left on the table for the regular folk. Enter: these interesting offers.

While smaller companies struggle to present competitive packages to new employees, perks and benefits can be a great place of leverage for hirees. When there isn’t a lot of cash left over, it can be appealing for companies to take the hit in other forms of investment.

These may not be the perks you find in your next offer, but be inspired: great benefits are around the corner; you just have to know what you’re looking for!

College Classes

Your company may not have a tutor on hand to teach you the finer points of theoretical physics, but that doesn’t mean going to to work for a small company has to end your educational path. Companies would do well to take a page out of Starbucks’ playbook and create a college plan. With this perk, employees can take classes and get reimbursed as they advance their degree — a move that’s great for both the worker, and the business investing in their future.

Pet Bereavement Leave

It may sound silly, but it’s not the biggest morale booster when you’re taking an extra coveted vacation day off the books just so you can deal with your cat, dog, or tiger. And a surprising number of companies have figured this out: companies are now offering pet-specific time off. Kimpton Hotels & Restaurants in San Francisco even offers a three-day pet bereavement leave.

“Sabbatical”

Rather than just asking for a big block of unpaid time off, some employees leverage their dreams of “unlimited vacation” into a productive would-be sabbatical. Universities often pay their professors to take off time from teaching to work on something in their field — like a book. Likewise, Timberland pays its employees to take 40 hours off per year for volunteer work. You don’t have to be at the top of a lofty industry to take time and do good things.

Tell Us What You Think

What interesting job perks have made the difference for you? Are job perks just another classic example of how this younger generation wants a handout? Take your side in the comments below, or by joining the conversation on Twitter!