All posts by stu

Manager, Restaurants, Risk Management, Workers Compensation

Employee Who Allowed Manager to “Pop” His Back, Denied Work Comp Benefits

An employee at a Florida Waffle House was having back complaints after working an 18 hour shift. Based on the complaints, the employer’s manager thought that “popping” (manipulating) his back might relieve some of his pain. The “popping” did not go well, and he was unable to stand up straight and had nerve pains running down his leg. The employee claimed that the manager’s manipulation of his back created the need for surgery following a diagnosed L4-5 disc herniation. He filed for lost wages and medical benefits under workers’ compensation.

The initial Compensation Judge awarded benefits and ruled the employee’s injury occurred within the course and scope of the claimant’s employment because he was on work premises during his shift while reasonably fulfilling his duties by either working the grill or receiving pain relief assistance from a manager. The judge also found that there was substantial evidence that the industrial accident was the major contributing cause of the claimant’s lower back injuries.

The Appeals Court reversed the Judge’s decision. The manipulation of the employee’s back by his supervisor did not constitute an injury that arose out of the claimant’s employment. He allowed the manipulation and it was not performed to support his work as a grill cook, only to help relieve his pain. The employee must prove that his injury was the result of an accident happening not only in the course of his employment but also arising out of that employment. There was no proof that working an 8 hour work shift was the cause of his back complaints. If so, the employee would need to offer proof that the injury was caused by repetitive trauma – a claim with a much higher burden of proof. To prove a repetitive trauma injury, the claimant had to show by clear and convincing evidence: 1) prolonged exposure, 2) the cumulative effect of which is injury or aggravation of a preexisting condition, and 3) that he had been subjected to a hazard greater than that to which the general public was exposed.

When reviewing the claim, the court stated that Florida Chapter 440 (work comp law) does not cover all workplace injuries but rather only covers work-caused injuries. Occupational causation cannot be established based solely on a showing that but for the employee being at work, he would not have been injured in the manner and at the particular time that he was hurt. The mere presence at work is never enough standing alone to meet the arising out of prong of the coverage formula, i.e., the back manipulation was not performed to support the claimant’s duties for the employer.

CDC, Coronavirus, Employee Illness, Employee Policies, Human Resources, Vaccines, Wellness program

CDC changes COVID-19 Isolation Guidelines – No More 5 days

In early March, the CDC significantly relaxed its isolation guidelines for those testing positive for COVID. According to the new 25 page guidance for COVID and other respiratory viruses (including flu and RSV), a person no longer has to isolate for five days.

CDC now recommends that COVID positive people should stay home while sick, but can return to work when they are feeling better and are fever-free for 24 hours without taking fever-lowering medications. When returning to the office, wear a mask and try to physically distance from others for the five days that follow. These steps are especially important for people who may be around individuals who are at high risk for severe risk of illness, those 65 and older, and those with weak immune systems.

CDC provides additional active recommendations on core prevention steps and strategies to lessen the impact of disease:

  • Stay up to date with vaccination to protect people against serious illness, hospitalization, and death. This includes flu, COVID-19, and RSV.
  • Practicing good hygiene by covering coughs and sneezes, washing or sanitizing hands often, and cleaning frequently touched surfaces.
  • Taking steps for cleaner air, such as bringing in more fresh outside air, purifying indoor air, or gathering outdoors.

Read the entire updated COVID-19 updated guidance from the CRC.

E-Verify, Hiring, HR Compliance, HR software, I9 Form, Immigration

Recent DOJ Fact Sheet for Employers Using Commercial Electronic Form I-9 Software

In December 2023, the Department of Justice (DOJ) published a fact sheet that discussed what employers should keep in mind if they use private sector commercial or proprietary software to electronically complete, modify, or retain Form I-9s. Although this document refers to these products collectively as Form I-9 software programs – it also applies to employers who use a commercial program to complete E-Verify. Bottom line – using a Form I-9 software program does not guarantee an employer’s compliance with federal law. An employer is responsible for ensuring that any software to electronically complete I-9s, or retain I-9s, complies with all legal requirements. Employers are not required to use commercial software, and have free and direct access to the I-9 Form and the E-verify system.

Pointers for employers using commercial Form I-9 software:

  • The complete I-9 Form and instructions must be available to employees.
  • Employees must complete Section 1 before employers finish Section 2.
  • Optional fields on the I9 Form must be able to be skipped by employees.
  • All Form I-9s must record and display all information entered, including rehires and re-verifications.
  • Software must uniquely identify each person accessing, correcting and changing the Form I-9.
  • Employers should provide personnel using the I-9 software with training and support. Have procedures for completing the I-9 form and E-verify cases if they have to be done outside the software system.

I-9 Software systems should avoid:

  • automatically pre-populating employee information from other sources.
  • completing an I-9 on an employee’s behalf unless the employer is helping the employee.
  • remove any I-9 form fields, or request additional information.
  • autocorrect, or post date an I-9 Form.
  • Fail to document all changes made to an I-9 form.

View Employer Training: Avoiding Unlawful Immigration-Related Employment Discrimination, presented by the Department of Justice. The IER has a free employer hotline for information on how to avoid unlawful discrimination, including when using Form I-9 software programs: 1-800-255-8155, available from 9:00 a.m. – 5:00 p.m. ET, Monday-Friday. Calls can remain anonymous.

300 Log, Injury Statistics, ITA, OSHA, Record Keeping, Safety

New Expanded OSHA ITA Reporting due March 2; Uses 2023 OSHA 300 log

Many employers with more than 10 employees are required to keep a record of serious work-related injuries and illnesses on the OSHA 300 log. OSHA logs need to be maintained for 5 years and OSHA 300A (summary) must be posted from February 1 to April 30 annually. Here are a few basics about OSHA 300 Logs, and how to use the OSHA log to complete the newly updated online Injury Tracking Application (ITA).

OSHA defines recordable injuries or illnesses (to be added to the OSHA 300 log) as:

  • Any work-related fatality.
  • Any work-related injury or illness that results in loss of consciousness, days away from work, restricted work, or transfer to another job.
  • Any work-related injury or illness requiring medical treatment beyond first aid.
  • Any work-related diagnosed case of cancer, chronic irreversible diseases, fractured or cracked bones or teeth, and punctured eardrums.

First-aid cases are excluded from the OSHA 300 logs. Here are some common first-aid situations:

  • Using a non-prescription medication at nonprescription strength.
  • Tetanus shots.
  • Cleaning, flushing or soaking wounds on the surface of the skin.
  • Using wound coverings such as bandages, Band-Aids™, gauze pads, etc… or using butterfly bandages or Steri-Strips.
  • Using hot or cold therapy.
  • Using any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc…
  • Drilling of a fingernail or toenail to relieve pressure, or draining fluid from a blister.
  • Using eye patches.
  • Removing foreign bodies from the eye using only irrigation or a cotton swab.
  • Removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs or other simple means.
  • Massages (physical therapy or chiropractic treatment are considered medical treatment for recordkeeping purposes); or
  • Drinking fluids for relief of heat stress.

OSHA’s Injury Tracking Application (ITA) now requires increased online reporting by certain establishments with 100 or more employees in high-hazard industries, which were already required to submit summary information on the OSHA Form 300A Annual Summary. A new 2023 rule change now mandates these employers submit injury specific information from the OSHA Form 300 Log and the OSHA Form 301 Incident Report (or first report of injury). This expanded reporting requirement is based on employees and industry classification of an establishment.

You must submit 300A data if your establishment meets one of the following criteria:

  1. Large employers (250 or more employees) and is not in an industry listed in the Exempt Industries list in Appendix A to Subpart B of OSHA’s recordkeeping regulation of 29 CFR Part 1904 or
  2. Small employers (20-249 employees) and is in an industry listed in Appendix A to Subpart E of 29 CFR Part 1904.

Additionally, you must submit 300/301 data if your establishment(s) has 100 or more employees and is in an industry listed in Appendix B to Subpart E of 29 CFR Part 1904.

ITA deadline is March 2. You can start submitting your 2023 injury and illness data on January 2, 2024. The due date to complete this submission is March 2, 2024. The submission requirement is annual and you must complete the submission of the previous year’s injury and illness data by March 2 of each year.

If you are an employer required to submit data to OSHA under the ITA, here is How to create an ITA account with OSHA.

Company Culture, Hiring, Interviews, Recruiting

10 Interview Questions to Screen for Company Culture

Interviewing candidates to assess fit with your company culture is crucial for building a cohesive and successful team and organization. Company culture is the shared values, attitudes, behaviors, and standards that make up a work environment. It is about the experience people have at work and is often connected with the messaging that your company projects to the community and potential candidates. Here are some interview questions that can help you screen for compatibility with your company culture:

  1. Describe your ideal work environment. What type of culture do you thrive in? This open-ended question allows candidates to express their preferences and gives you insight into whether their ideal work environment aligns with your company culture.
  2. Can you share an example of when you worked in a team to achieve a common goal? How did you contribute, and what was the outcome? This question helps assess a candidate’s teamwork and collaboration skills, providing insights into their ability to work effectively within your company’s collaborative culture.
  3. How do you handle feedback, both positive and constructive criticism? Understanding how a candidate responds to feedback can reveal their openness to continuous improvement, a key aspect of many positive company cultures.
  4. Tell me about a time when you faced a challenge at work. How did you approach it, and what was the result? This question provides insight into a candidate’s problem-solving skills and resilience, which are often important attributes in a dynamic and adaptable company culture.
  5. What values are most important to you in a workplace, and why? By asking about the values a candidate prioritizes, you can gauge whether their values align with your company’s core values and cultural principles.
  6. Describe a situation where you had to juggle multiple tasks with tight deadlines. How did you prioritize and organize your work? This question assesses a candidate’s ability to handle stress and manage their workload, which can be indicative of their compatibility with a fast-paced or deadline-driven culture.
  7. How do you stay motivated and engaged at work? Understanding a candidate’s sources of motivation can provide insights into whether they align with the factors that drive motivation within your company culture.
  8. Can you provide an example of when you took the initiative to improve a process or solve a problem without being prompted? Both initiative and proactiveness are often valued in company cultures that prioritize innovation and continuous improvement.
  9. What drew you to apply for a position at our company? This question can help you gauge whether the candidate has researched your company and understands its values and mission, indicating a potential cultural fit.
  10. How do you balance work and life outside of the office? This question addresses work-life balance, which is a crucial aspect of many company cultures that value employee well-being and satisfaction.

Once you gather information about your candidate, remember that assessing cultural fit is a two-way street. Encourage your candidates to ask questions about your company culture and values to ensure that they also feel aligned with your organization. A good culture fit will provide a high probability of building a long-lasting employment relationship.

HR Costs, Human Resources, Risk Management, Safety, Workers Compensation

2024 Florida Workers’ Compensation Rates Decrease 15.1%

Effective January 1, 2024, Florida employers will receive another overall workers’ compensation rate decrease – 15.1%. In late 2023, after recommendations from the National Council on Compensation Insurance (NCCI), the Florida Insurance Commissioner issued a final order reducing rates in Florida. This is the seventh consecutive annual decrease in rates for Florida.

Where can you review the new 2024 rates? You can speak to your insurance agent for the latest rates. Also, the Florida Workers’ Compensation Joint Underwriting Association (FWCJUA) has posted the 2024 new rates on its website. The Florida Legislature created the FWCJUA to provide workers’ compensation and employer’s liability insurance to employers who are required by law to maintain such insurance and who are in good faith entitled to, but who are unable to purchase insurance through the voluntary market. Employers insured within the FWCJUA pay premiums in excess of those paid in the voluntary market.

Why are rates decreasing? According to NCCI (which studies the data and makes recommendations to FL), lost-time claims relative to WC premiums have returned to their 20-year trend trajectory, declining 4% in the past year. Employment and wage growth marked a return to pre-pandemic levels. Private carrier plus state fund net written premium increased about 10% to $47.5 billion in 2022, just above the 2019 level. Private carriers posted a calendar year combined ratio of 84% (below 100% indicates underwriting profitability). Read more from NCCI.

Here are some tips from national insurance carriers on how to manage your WC costs and reduce the risk of claims:

Business Expenses, Construction, IRS, Taxes

IRS Mileage Rate for 2024 is 67 cents per mile

Businesses and individuals who rely on their vehicles for work-related travel will be impacted by changes in the IRS mileage rate. The IRS periodically adjusts the standard mileage rate to reflect the true costs of operating a vehicle for business purposes. In 2024, there’s a notable increase that will have implications for those who use their cars for work-related activities. The IRS mileage rate for business miles in 2024 has been increased to 67 cents per mile.

These rates apply to electric and hybrid-electric automobiles as well as gasoline and diesel-powered vehicles. The standard mileage rate for business use is based on an annual study of the fixed and variable costs of operating an automobile. It is important to note that under the Tax Cuts and Jobs Act, taxpayers cannot claim a miscellaneous itemized deduction for unreimbursed employee travel expenses.

Audits, Compliance, E-Verify, I9 Form, Immigration, USCIS

Waste Management Master Services Agreement (MSA) Contractor I9 Audit Services

Consultstu LLC was recently retained to be a third-party auditor to review and certify for compliance that Form I9s (along with E-Verify cases and copies of employment eligibility documents) were being maintained by a Contractor of Waste Management National Services, Inc. According to the Waste Management Master Services Agreement (“MSA”), Contractors are required to comply with all immigration laws and Waste Management can require an independent audit to verify compliance.

For many years, we have performed independent immigration reviews for Publix Suppliers. The Waste Management auditor certification requires very detailed responses to specific questions about the I9 Forms, E-Verify cases and employment eligibility and identity documents. The Waste Management audit is focused only on statistics concerning employees of the Contractor who worked at Waste Management sites, and does not require responses about employees that were considered for assignment at Waste Management, but were never deployed there.

Here are some of the Waste Management audit areas of inquiry:

  • Is there a correctly completed I9 form for all employees? How many I9s were reviewed?
  • Were copies of the supporting employment eligibility and identity documents maintained? Were they reviewed by the auditor?
  • Were technical violations found on the I9 forms? Were these errors corrected?
  • How many I9s had substantive violations?
  • Did any employment eligibility and identity documents appear to be tampered with or fraudulent on their face?
  • Were any I9 forms not completed in their entirety? Were violations remedied?
  • Was an E-Verify case created and properly & timely closed for each employee? Are there any unclosed E-Verify cases?
  • Were copies of photo-matching documents maintained by the company and used for the employee cases?
  • Did any E-Verify cases result in a Tentative Non-confirmation? Were they remedied?

Due to our extensive experience with human resources practices and I-9 forms, we have served as the independent third-party auditor for many large and small companies around the United States. Our remote review services are available if your company has been asked to complete a third-party independent audit of its immigration practices. Stuart Charlson has over 27 years of experience with human resources consulting and compliance services for small to mid-sized businesses.

In addition to independent audit services, we also provide proactive consulting services to companies needing assistance with immigration compliance and reviews of immigration documentation. For more information about our services, contact our office at 727-350-0370.

401(k), Affordable Care Act, Compensation, Compliance, Department of Labor, Employee Handbook, Employment Poster, Holidays, I9 Form, Minimum Wage, W2, W4

Checklist of 2024 New Year HR and Payroll updates

It’s almost 2024, so now is the time to review and update your company’s HR and payroll practices and documents for the new year. With 2023 ending, there are several human resources and payroll items to review and update for January. Here is Consultstu’s 10 point HR and Payroll checklist for 2024 – start now to complete the needed HR and payroll updates.
1. Update the new hire packet with 2024 documents. Replace your W4 with the 2024 version. Optional – send the new W4 to existing employees in January to see if they would like to make changes for 2024.
2. Check to ensure you are using the latest Form I-9 (expiration date for 2026). Use E-verify to take advantage of the remote document review process.
3. Go through terminated employee I9s and purge old I9 forms. The I9 retention rule is a minimum of 3 years or 1 year after termination, whichever is longer.
4. If group insurance plans renew on January 1, update the DOL Healthcare Exchange form (mandated by ACA) with current group health insurance renewal information (contribution cost and eligibility) and add to page 2
5. Check the Florida and federal workplace posters to ensure the latest versions are posted. See the Florida Department of Economic Opportunity webpage for free versions.
6. Review, update and post the updated observed holiday schedule for 2024 (here is the 2024 federal holiday schedule) and add to the Employee Handbook. It’s also a Leap year!
7. Review recruiting and retention strategies for 2024 to stay current with the labor market conditions. Check the trending labor rates for key positions and obtain current compensation data to validate existing salary bands. Florida DEO publishes quarterly salary data.
8. For 2024, 401k plan contribution limits will increase in 2024 to $23,000 by the Internal Revenue Service. The catch-up contribution limit for employees aged 50 and over who participate in 401(k) remains the same at $7,500. Read more about it.
9. Check minimum wage rates (Florida MW rate increased to $12.00 per hour on September 30, 2023). The federal DOL plans to raise the minimum salary level for exempt employees to $1,059 per week (starting April 2024) – a 55% increase, so be prepared.
10. Update your travel policy to adjust to the new IRS 2024 mileage rates. If your company provides mileage reimbursement, review the new rates effective January 1st, 2024. The rate increases to 67 cents per mile (up 1.5 cents per mile).
Here is one last recommendation. To prepare accurate W2s and 1099 forms at the end of January, obtain employee consent to electronic delivery of their W2 forms. Per IRS regulations, employers need affirmative consent from an employee in order to deliver Forms W2 electronically.

Happy new Year!

Compliance, DOT, Drivers, Drug and Alcohol, Drug Free Workplace, HR Compliance, Risk Management

DOT Announces Approval for Oral Fluid Testing, Part 40 Changes (but not yet…)

Effective June 1, 2023, the Department of Transportation (DOT) authorized oral fluid testing for the first time, marking a significant shift away from urine-only drug testing policies. This change provides employers with greater flexibility while affording employees enhanced privacy. The final rule, among other items, amends the DOT’s regulated industry drug testing program to include oral fluid testing. However, DOT oral fluid testing cannot be implemented until the Department of Health and Human Services (HHS) certifies at least two laboratories (one to serve as a primary laboratory, and a second to serve as a split specimen laboratory). The DOT press release provided everyone with a listing of HHS-certified laboratories https://www.transportation.gov/odapc/labs.

The new regulation is not proposing to eliminate urine testing; rather, oral fluid testing will be an alternative.  Each specimen type offers different benefits to assist employers in detecting and deterring illegal drug use.  Most significantly, DOT’s new rule states that the oral fluid testing window of detection for marijuana is up to 24 hours, whereas urine testing’s window of detection for marijuana is 3 to 67 days.

What do you need to know about the use of oral fluid testing and Part 40 changes?

  • Employees can be subject to either an oral fluid collection or a urine collection for any DOT-regulated test (pre-employment, random, reasonable suspicion/ cause, post-accident, return-to-duty, or follow-up).
  • The employer can choose to conduct an oral fluid or a urine test, for the test reason.
  • It is a best business practice to have a standing order in place with each collection site, so they know what kind of collection is to be performed (i.e., urine or oral fluid) and when.

There are also some changes for Substance Abuse Professionals (SAPs). A SAP evaluation may be conducted remotely as long as the technology used permits real-time two-way audio and visual interaction between the SAP and the employee.

Lastly, there are a few changes relating to Medical Review Officers (MROs).

  • MRO staff (not just an MRO) may contact a pharmacy to verify a prescription that an employee has cited as a potential legitimate medical explanation for a laboratory-confirmed positive test.
  • MROs are not required to undergo recertification training, but it is strongly suggested that MROs seek supplemental information about oral fluid testing by the time HHS certifies at least two laboratories to conduct oral fluid testing.

All employers with regulated employees should view the new final rule on ODAPC’s website.

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