March 2017 HR Advisor Newsletter

Welcome to the March edition of the HR Advisor Newsletter. This month we look at the requirements of the Pregnancy Discrimination Act, examine a trendy new employee benefit, and go over the steps to protect your business from an email phishing scam.

HR Alerts

Last spring, the IRS issued a warning about an emerging phishing email scheme that targets HR and payroll departments. The scammer purports to be a company executive and requests personal information about employees – often in the form of W-2s or payroll records. The IRS gave examples of what the emails might say:

• Kindly send me the individual W-2 (PDF) and earnings summary of all W-2 of our company staff for a quick review.
• Can you send me the updated list of employees with full details (name, SSN, date of birth, home address, salary)?
• I want you to send me copies of employees’ W-2 wage and tax statements for 2016. I need them in PDF file type; you can send it as an attachment. Kindly prepare the lists and email them to me asap.

The scammers then attempt to use the information to file fraudulent tax returns and engage in other criminal activity. For employers, a successful scam can be a costly data breach with legal consequences. For example, if an email account is hacked or accessed by an outside party, everything in the email account might be accessible to ne’er-do-wells. One of the best ways to protect your company from these sorts of scams is to have a policy and practice of never emailing sensitive employee information.

The language below may be an effective reminder:
“Employees should not under any circumstance email sensitive employee information such as W-2s, benefit enrollment forms, completed census forms, or anything with social security or credit card numbers. Email is inherently insecure, and scammers may pose as company executives or employees to steal information. If you receive a request to email any such sensitive information, do not respond to it. Instead, inform your manager immediately.”

Businesses are generally required to take reasonable precautions to protect personal information in their possession. In the event of a breach, many states require that notice be given to those whose information was compromised. This notice might need to include the cause and nature of the data breach as well as what protections are afforded to those affected.

Accommodating Pregnant Employees

Let’s imagine a situation. Wendy, who’s been on the job for only four months, informs her employer that she’s pregnant. She requests light duty and asks if temporary leave is an option.

Instead of accommodating Wendy, the employer terminates her employment, explaining to her that her employment is at-will and that they don’t have the staff to modify her duties or cover her responsibilities while she’s away on leave. They remind her that during her job interview, they asked if she had plans to become pregnant and she had said no.

Then her manager makes a point of highlighting instances in which her job performance was less than satisfactory – an assessment they had not, up till then, given to her.

Was the employer right to terminate Wendy’s employment?

Her employment was at-will, but we should remember that at-will employment has limits. There are illegal reasons for firing someone, and pregnancy is one of them. Pregnancy discrimination includes pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. And the Pregnancy Discrimination Act (PDA) prohibits discrimination and harassment based on pregnancy when it comes to any aspect of employment – hiring, termination, layoff, pay, benefits, and any other term or condition of employment.

Therefore, the decision to terminate Wendy’s employment was a highly risky move. Wendy could claim that she was illegally discriminated against. Her employer would have a difficult time arguing that the termination was for cause – i.e., her poor performance – when they hadn’t documented the instances of unsatisfactory performance or given her any opportunity to improve.

Refusing leave or light duty was also potentially risky. If Wendy was temporarily unable to perform her job due to a medical condition related to her pregnancy, then her employer, under the PDA, must treat her the same way it treats any other temporarily disabled employee. If Wendy’s employer had previously made accommodations for other temporality disabled employees, then refusing accommodations to Wendy would be discriminatory.

Other laws may also come into play. Some impairments related to pregnancy may be disabilities under the Americans with Disabilities Act. The Family and Medical Leave Act provides protected leave for some employees incapacitated due to pregnancy, prenatal medical conditions, or childbirth. State laws may apply here as well. California and Maryland, for example, have pregnancy disability leave laws.

The takeaways: Pregnancy is a protected class under state and federal law. It’s a good idea to know what those laws require and whether they apply to your business.

Question & Answer

Q: Is it okay to wish our employees a happy birthday on our company social media page?

A: There’s no law against it, but some employees may feel that announcing their birthday violates their privacy. While it’s great that you want to recognize your employees and celebrate with them, I recommend not announcing an employee’s birthday without first getting their permission.

In the case of announcements on public social media, I would get a signed acknowledgment that the employee has given you permission to share their birthday and that their doing so is completely voluntary. Announcing birthdays on public social media pages is a little riskier because they can be seen by everyone.

You could instead make the announcements internally (still with permission). Popular approaches include email, newsletter, or intranet. Many offices have a birthday celebration each month, such as a gathering with cake, ice cream, or cupcakes, and announce the employees who have birthdays during that month without mention of their exact birthday. This is a way to celebrate employees and increase comradery and morale, while avoiding shining too bright of a spotlight on any given employee on a particular day.

Looking for an Enticing Benefit to Offer?

Businesses looking to attract new employees must distinguish themselves from the competition, especially if they’re unable to pay salaries above the market value. Creative benefits often do the trick, particularly if they address specific needs.

With more and more college graduates entering the workforce and more and more of them graduating with substantial debt, some companies are enticing prospective employees with a student loan repayment benefit.

The benefit is a rare, sought-after gem. Over 70% of college graduates have student loan debt, 76% of respondents to a 2015 American Student Assistance survey said the benefit would be a contributing factor to their accepting a job, and only about 4% of companies offered the benefit in 2016, according to the Society for Human Resource Management.

It has downsides, though. For one, it helps only employees with current student loan debt, not those who’ve already worked hard to pay off their debt or never had any in the first place. The benefit could therefore be viewed as unfair and become a cause of contention in the workplace. For another, it’s considered taxable income, and at present there’s no tax write-off for employers who offer it.

Employers, however, do have some leeway on how to offer the benefit. The amount of the benefit can be offered monthly or as a lump sum, it can be capped, and it can be tied to an employee match. A waiting period is also fine.

If you’re looking for an enticing benefit to attract new talent, a student loan repayment benefit may be something to consider. If this benefit isn’t desirable or doable, that’s okay. We realize this benefit isn’t one that will work for most employers, at least at this point in time, but we want to keep you up to date on employee benefit trends. The important thing is that you appeal to potential employees by distinguishing yourself, and there’s no one way to do that!