IN THIS ISSUE:

1. Feature Story: Stimulus Law Contains Expansive Whistleblower Protections

2. Cathie's Corner: Easing Some Of The Pain Of Unemployment Claims

3. Handle With Care: Religious Accommodation Requests

4. Free Report: COBRA Compliance Complications Multiplied By The Economic Stimulus Law (ARRA) 

5. HR Soapbox: The Taxman Cometh…And So Do The Tax Protesters

AHI's We Couldn't Make This Up 

A New York City police officer allegedly claimed to have seen a demon in police headquarters. When top brass refused to give him back his gun and badge (which had been stripped since a psychotic episode in April 2006) following his sighting, the officer filed a religious discrimination lawsuit. His contention: I'm being punished for being too religious. Maintains the department: "The medical board believes the [officer] cannot be in possession of any weapons since he feels subject to God's will to do what God wants him to do even if he destroys himself."

1. FEATURE STORY:
STIMULUS LAW CONTAINS EXPANSIVE WHISTLEBLOWER PROTECTIONS

Buried within the American Recovery and Reinvestment Act of 2009 (ARRA) is a provision that provides broad protections for whistleblowers. More commonly known as either the McCaskill Amendment or Section 1553, the provision contains several pro-employee elements not generally found in other whistleblower provisions enforced by the Department of Labor (DOL).

In A Nutshell 

Who's protected: Employees of non-federal employers that receive direct or indirect stimulus funds. An example of an indirect receipt of funds is a private employer contracting with entities that have received federal stimulus funds.

Important: The language of Section 1553 suggests supervisors and managers can be held individually liable for violations.

What's prohibited: Retaliating against an employee for disclosing to an inspector general, a government agency, Congress, a supervisor, a court, or a grand jury information that the employee reasonably believes is evidence of:

• gross mismanagement of an agency contract or grant relating to stimulus funds;
• a gross waste of stimulus funds;
• substantial and specific danger to public health related to the implementation or use of stimulus funds;
• an abuse of authority related to the implementation or use of stimulus funds; or
• a violation of a law, rule, or regulation related to an agency contract or grant awarded or issued relating to stimulus funds. 

Congress stressed that Section 1553 extends to those employees simply performing their job duties. This does not mean, however, that employees have to complain about the performance of regular job duties in order to be protected.

What else is prohibited: Requiring employees to waive their rights under Section 1553 in any agreement, policy, form, or condition of employment, including a pre-dispute arbitration agreement. Exception: collective bargaining agreements.

What's required: Posting a notice of rights and remedies provided under Section 1553. Since the Act does not make any further specifications, the easiest way to fulfill this requirement is to post a copy of Section 1553 in its entirety.

Burden Of Proof 

Section 1553 makes it easier for employees to sue...and to win. Unlike in a Title VII retaliation claim — which requires employees to show that the protected activity was a determining, significant, or motivating factor in the employer's decision — Section 1553 only requires employees to prove that the protected activity was a “contributing factor” in the alleged retaliatory act. Employees can use circumstantial evidence, including the employer's knowledge of the employee's disclosure and the short passage of time between the disclosure and the reprisal.

Employers can avoid liability by providing "clear and convincing evidence" that they would have taken the same action absent the employee's disclosure. This is in stark contrast to Title VII's requirement that employers need only articulate a legitimate, non-discriminatory reason.

Alarming for employers isn't just the fact that employees face an easier burden of proof, but also that Section 1553 does not establish a statute of limitations or impose a damages cap.

What To Do 

Reduce the company's risk of liability under Section 1553 by:

• Implementing a policy that prohibits discrimination and retaliation against employees who report in good faith any type of wrongdoing, not just discrimination and harassment.
• Training managers on the new whistleblowing provisions, and reviewing old requirements.
• Training employees on the company's ethical expectations and complaint-reporting process.
• Actively encouraging employees to report alleged wrongdoing internally first. Hold an awareness program, establish a complaint hotline, devote an e-mail inbox.
• Investigating promptly all complaints of alleged wrongdoing and alleged retaliation.
• Reinforcing the need for managers to document all of their reasons for wanting to terminate an employee who recently filed a Section 1553-related complaint.
• Audit the use of stimulus funds to reduce the risk of employee complaints.

The Stimulus Bill Dramatically Changes COBRA Compliance For Employers -- April 18th Notification Deadline Coming Soon!   

Employers must act immediately to change their COBRA policies and procedures in order to comply with the federal stimulus bill, known as the American Recovery and Reinvestment Act of 2009 (ARRA).

Perhaps the biggest change for COBRA is that the federal government is providing a subsidy covering 65% of the COBRA premium for assistance eligible individuals.

For most employers, the subsidy rules took effect on March 1. Other notification changes require your attention by April 18. 

AHI's Complete COBRA Compliance Kit makes it easy for you to stay in compliance with all of the various aspects of COBRA...including the new stimulus rules. 

Visit our website to learn more or to get your risk-free copy today!   

2. CATHIE'S CORNER:
 EASING SOME OF THE PAIN OF UNEMPLOYMENT CLAIMS

In the current economic situation, many of us are in the position of having to lay off some of our employees. (It's also possible that some of us may end up laid off ourselves.) The unemployment offices in many, if not most, states are currently backed up with record numbers of claims. This makes the process even more irritating and difficult for both employer and employee....Continue the story.

3. HANDLE WITH CARE: RELIGIOUS ACCOMMODATION REQUESTS

Before you reject an employee's religious accommodation request, you'd better be sure that the accommodation would create an undue hardship. Failing to grant a reasonable request is a costly violation of the employee's rights....Continue the story.

4. FREE REPORT: COBRA COMPLIANCE COMPLICATIONS MULTIPLIED BY THE ECONOMIC STIMULUS LAW (ARRA)
 

Check out the Free Report, "COBRA Compliance Complications Multiplied By The Economic Stimulus Law (ARRA)," which explores timely compliance issues for employers. Learn more about which plans, entities, and individuals are covered; special enrollment rights; notification requirements; subsidy periods; and payroll offsets. Also explore subsidy documentation substantiation requirements and what to watch out for when it comes to determining whether a dismissal qualifies as an involuntary termination. Bonus: The report contains recently guidance from the IRS.

5. HR SOAPBOX: THE TAXMAN COMETH...AND SO DO THE TAX PROTESTERS

Is it a mere coincidence that the "IRS" is just one letter away from a synonym of anger? Because "ire" is just one of the many feelings that the IRS evokes....Continue the story.