Information Every Business Needs to Know
HR & Benefits Advisor
February 2010


Brought to you by: Select Services Inc.

In This Issue

Do you have Social Media Policy? <> 

Writing a Dynamic Job Description <> 

Employer Provided Vehicles <> 

Mental Health Parity <> 

COBRA Subsidy Payments <> 


New Rules on Mental Health Parity

The U.S. Departments of Labor, Health and Human Services (HHS), and the
Treasury jointly issued new rules providing parity for consumers enrolled in
group health plans who need treatment for mental health or substance use
disorders. The new rules prohibit group health insurance plans from
restricting access to care by limiting benefits and requiring higher patient
costs than those that apply to general medical or surgical benefits. The
rules implement the Paul Wellstone and Pete Domenici Mental Health Parity
and Addiction Equity Act of 2008 (MHPAEA). The new rules are effective for
plan years beginning on or after July 1, 2010, and apply to employers with
50 or more workers whose group health plans choose to offer mental health or
substance use disorder benefits. 
The new law requires that any group health plan that includes mental health
and substance use disorder benefits along with standard medical and surgical
coverage must treat them equally in terms of out-of-pocket costs, benefit
limits and practices such as prior authorization and utilization review.
These practices must be based on the same level of scientific evidence used
by the insurer for medical and surgical benefits. For example, a plan may
not apply separate deductibles for treatment related to mental health or
substance use disorders and medical or surgical benefits. They must be
calculated as one limit. 
A press release from the DOL on the regulations is available here
<http://www.dol.gov/opa/media/press/ebsa/EBSA20100151.htm> .

COBRA Subsidy Payments in 2010

The IRS has responded to employer questions related to receiving the 35%
share of the COBRA premium assistance in 2010 for 2009 coverage and what to
do as it relates to Form 941 with the following guidance. If an employer
receives an assistance eligible individual's 35% share of the COBRA premium
in 2010, the employer may claim the credit for the related premium subsidy
on Form 941 for either the quarter in 2010 in which it receives the
individual's 35% premium payment or a later quarter in 2010, but not for a
quarter in 2009, regardless of the fact that the premium is for coverage
during 2009.
Q. Is the employer required to claim the credit on Form 941 for the quarter
during which the COBRA subsidy is provided to assistance eligible
individuals? 
A. No. Instead of claiming the credit on Form 941 for the quarter during
which the COBRA subsidy is provided, the employer may generally choose to
claim the credit on Form 941 for a later quarter in the same calendar year.
Alternatively, if the employer has not claimed the credit on the original
Form 941 for the quarter during which the COBRA subsidy was provided, the
employer can file Form 941-X <http://www.irs.gov/pub/irs-pdf/f941x.pdf>  for
that quarter. In all cases, however, if an employer chooses to reduce its
payroll tax deposits during a quarter by the amount of subsidy provided
during the quarter (or during a previous quarter), it must claim the credit
for that subsidy amount on Form 941 for the quarter during which its payroll
tax deposits were reduced. In addition, of course, an employer may not claim
credit for the same subsidy amount on Forms 941 for more than one quarter.
Q. If, in 2010, an employer receives payment of an assistance eligible
individual's 35% share of the COBRA premium for 2009 coverage, does question
FP-15 <http://www.irs.gov/newsroom/article/0,,id=205373,00.html>  permit the
credit for the related 65% premium subsidy to be claimed for a quarter in
2009?
A. No. If an employer receives an assistance eligible individual's 35% share
of the COBRA premium in 2010, the employer may claim the credit for the
related premium subsidy on Form 941 for either the quarter in 2010 in which
it receives the individual's 35% premium payment or a later quarter in 2010,
but not for a quarter in 2009, regardless of the fact that the premium is
for coverage during 2009. In all cases, however, if an employer chooses to
reduce its payroll tax deposits during the quarter based on the receipt of
the individual's 35% premium payment, the employer must claim the credit for
the related subsidy amount on Form 941 for the quarter during which its
payroll tax deposits were reduced. In addition, of course, an employer may
only claim credit for the subsidy amount once.




Employers Must Consider Implementing Social Media Policies
By Andrew W. Singer, Esq. and Jason B. Klimpl, Esq.
The boundaries between personal and professional have become increasingly
blurred due to the growing prevalence of internet-based social media,
including interactive websites such as Facebook, MySpace, LinkedIn and
Twitter. While social media outlets may be excellent platforms for employees
to network and promote their employer's business, a myriad of problems may
result from an employee's improper or unlawful use of a company's name,
reputation or confidential information while using such social media. 
As a result, all employers must consider whether to implement a policy to
guide their employees in responsibly and lawfully using social media and any
employer that encourages its employees to use social media to further
business objectives should have a social media policy in place. In deciding
whether a social media policy is appropriate, an employer should first
reflect upon the concepts described below. 
Employee Use of Firm Identity. If an employee uses an employer's name or a
company e-mail address to communicate with or otherwise use social media, a
third-party may be led to believe that the employee is speaking or writing
on behalf of the company. A third-party may think that the employee is
acting in an official capacity with authority to bind the employer, or that
certain views espoused by the employee are the views of the company. For
this reason and others, the FTC has implemented rules effective December 1,
2009, regulating the use of testimonials in advertising. Under these rules
an employer may be held responsible for employee maintained blogs or other
employee postings about the employer's products and services. In an effort
to avoid these problems, a social media policy may direct employees in such
situations to use a disclaimer explicitly stating that his or her views are
not those of the employer. The social media policy may also provide that
employees are not permitted to act or speak as a representative of the
company while using social media, unless given prior permission. 
Conflicts with Employment Responsibilities. Employees should be prohibited
from using social media - whether in or away from the office - in a way that
conflicts with their professional obligations or work responsibilities. For
example, an employee's use of social media to promote services or businesses
that compete with his or her employer may be prohibited. A policy should
prohibit an employee's excessive use of social media that results in
deficient work performance, and employers may wish to limit employees'
in-office use of social media to certain hours. Finally, to the extent
employees are permitted to use social media during working time, the policy
should prohibit employees from using company computers or other equipment to
conduct any commercial activity unrelated to the employer's business. 
Confidentiality and Intellectual Property Protections. A social media policy
should address employees' online use and dissemination of an employer's
confidential and proprietary information. The policy should clearly define
what information is confidential to the employer and state how employees may
or may not use such information. Employers may risk any right they have to
protect client contact information by encouraging employees to connect with,
link to or friend the employer's clients through the employee's personal
social media accounts. These risks need to be balanced with the potential
benefits to a business of doing so. The policy should also provide that the
employer's intellectual property, including trademarks, logos, and
copyrighted material, may not be used by the employee while using social
media without the company's prior consent. 
Employee Performance Feedback. In the event of a lawsuit by a terminated
employee, positive feedback posted on social media by co-workers or
supervisors may be used against the company to show that the worker was
performing satisfactorily. For instance, in the event of a discrimination
claim where a company terminated a worker for poor performance, it would be
harmful to the company if one of its supervisors had "recommended" the
worker on LinkedIn. As a result, a social media policy may contain a
provision that prohibits employees from using social media to comment on or
display information concerning the work performance of other employees
without prior company consent.
Workplace & Co-Worker Privacy. Employees who use social media should be
reminded of the need to honor the privacy rights of their co-workers. Thus,
a policy may state that employees should seek permission from co-workers
before writing or displaying information that might be considered a breach
of privacy or confidentiality. Further, the social media policy should
prohibit employees (including supervisors) from gaining or attempting to
gain unauthorized or unlawful access to another employee's private and
secure social media platform, which may, for instance, be a violation of the
federal Stored Communications Act and various state privacy laws.
The Employer's Right to Monitor. Companies should be open with their
employees and inform them of the company's right to lawfully monitor their
use of social media to protect legitimate business interests. However, the
social media policy should also prohibit employees from using any
information derived from an applicant's or employee's use of social media to
unlawfully discriminate against that individual on the basis of a protected
class. 
Advising Employees to Use Common Sense. Any social media policy should
appeal to employees' common sense and sound judgment. The policy should
remind employees that anything they write or display may be used to form
opinions about the company and may permanently remain in the public domain.
In this regard, the policy should urge employees to use common sense and
utilize social media in a knowledgeable, respectful, and professional
manner. Specifically, the policy should prohibit employees from jeopardizing
the reputation or interests of the employer by making or engaging in
personal attacks, obscenities, pornography, lewdness, defamation,
harassment, intellectual property infringement, and other inappropriate
behavior. Finally, employees should be reminded that any unlawful conduct
while using social media may result in civil or criminal charges against
them.
Conclusion. A well-crafted social media policy may be a useful tool for
employers to prevent the dissemination of its confidential information, the
improper use of its intellectual property, and a host of other problems
stemming from employees' use of social media. Consequently, companies should
consider whether implementing such a policy would further their business
objectives and fit within their company culture.
Andrew W. Singer, Esq. is partner in the employment law group at the New
York City law firm of Tannenbaum Helpern Syracuse & Hirschtritt LLP. Jason
B. Klimpl, Esq., an associate at the firm, focuses his practice on
employment law and staffing industry issues. If you have any questions
regarding the implementation of an employee social media policy or other
issues of employment law please contact Mr. Singer at (212) 508-6723
(
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 ) or Mr. Klimpl at (212) 508-7529 (
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 ).
This article is general in nature and is not intended to be legal or tax
advice or a legal opinion rendered in response to a specific set of facts.





Writing a Dynamic Job Description
How do you write a job description that really works for your company? It's
all about a process that involves detailed investigation, collaborative
effort, and streamlining of company policy. By the time you have
successfully completed a job description, you will not only have a very
effective tool in filling a job opening, but you will also help to reshape
organizational standards for your company. 
First, Perform a Job Analysis
To better understand the position you are filling, your company should first
perform a job analysis. A job analysis is an investigation into the purpose
and necessary requirements of any particular job. It should combine personal
observation, interviews and collected data, such as questionnaires or work
entries. 
Identify the Job's Purpose
The first step in performing your job analysis is to identify the reasons
why the job exists at all. How does the job contribute to the success of
your organization? Then, list what duties are necessary to make these
important contributions. This list should only be a handful of duties, and
not yet go into significant detail.
Reconstruct the Work Setting
Next, you should recreate the environment in which the employee will work.
Start with the overall worksite itself. How is the site laid out? What
equipment is used? Does the employee have to travel on or off the premises?
What physical conditions will the employee encounter or experience? Note
whether the employee will interact with the public or customers, or remain
in a private setting.
After describing the worksite, think about the employee's immediate
workstation. How is the area arranged? What, if any, equipment will he or
she use? 
List Activities
To complete your job analysis, record the activities the employee will be
required to perform. Is there an order in which work is performed on a daily
basis? Do you expect the employee to produce specific results? Be sure to
identify and list results or expectations. 
Determine the Essential Functions
Once you have completed a job analysis, it is time to write the basic
requirements or essential functions of the job. The job analysis will help
you to clearly define the duties, activities and results expected of the
employee. Also be sure to avoid preferences that do not relate to the
essential functions of the job, such as an advanced degree for clerical
work. 
Include the amount of time spent on each task, possibly with ratios or
percentages, as long as the figures are accurate. If appropriate, allow
flexibility in the position so that an applicant does not believe he or she
is pigeonholed into only a few tasks when you may want the employee's role
to grow. It is also important to include the input of several managers and
employees to craft a more accurate and complete job description. 
Recruiting and the ADA
When developing your job description, be sure you do not violate disability
discrimination laws such as the Americans with Disabilities Act. Also,
review your state's discrimination laws as well. Compliance guidance is
available from the Office of Disability Employment Policy and the Job
Accommodation Network <http://www.jan.wvu.edu/>  (JAN). For more information
on recruiting and hiring people with disabilities, please review the
Recruiting and Hiring
<http://www.disability.gov/employment/employing_people_with_disabilities/rec
ruiting_&_hiring>  section on Disability.gov <http://www.disability.gov/> .
Use Your Job Description as a Company Standard
Finally, a skillfully-developed job description can reshape your company
standards. The description should serve as the basis for how you evaluate
performance in that position, since the company took the time to carefully
investigate, define and revise the key requirements of the job. Using the
job description in this regard will promote consistency throughout the
employee relationship, from recruitment and training to performance review
and succession. The more consistent and objective your company's documents
are regarding all job-related descriptions and reviews, the less exposure
you will have to issues related to arbitrariness, favoritism or
discrimination.




2010 Values for Vehicles Provided by Employers
The IRS has released Rev. Proc. 2010-10, which updates for 2010 the maximum
allowable fair market value (FMV) of an employer-provided vehicle for use in
determining the value of an employee's personal use of the vehicle.
If an employer provides an employee with a vehicle that is available to the
employee for personal use, the value of the personal use must generally be
included in the employee's income and wages. (IRC § 61; Treas. Reg. §
1.61-21)
*	The maximum value of employer-provided vehicles first made available
to employees for personal use for which the vehicle cents-per-mile valuation
rule provided under section 1.61-21(e) of the Income Tax Regulations may be
applicable is $15,300 for a passenger automobile and $16,000 for a truck or
van;
*	The maximum value of employer-provided vehicles first made available
to employees for personal use in calendar year 2010 for which the
fleet-average valuation rule provided under section 1.61-21(d) of the
regulations may be applicable is $20,300 for a passenger automobile and
$21,000 for a truck or van.
For additional information, see Rev. Proc. 2010-10
<http://www.irs.gov/irb/2010-03_IRB/ar13.html> .



	
Newsletter provided by: 
HR and Benefits Essentials
400 Main Street, Suite 410, Stamford, CT 06901
(203) 977-8100 
www.HRandBenefits.com 
Please Note: The information and materials herein are provided for general
information purposes only and are not intended to constitute legal or other
advice or opinions on any specific matters and are not intended to replace
the advice of a qualified attorney, plan provider or other professional
advisor. This information has been taken from sources which we believe to be
reliable, but there is no guarantee as to its accuracy. In accordance with
IRS Circular 230, this communication is not intended or written to be used,
and cannot be used as or considered a "covered opinion" or other written tax
advice and should not be relied upon for any purpose other than its intended
purpose.
The information provided herein is intended solely for the use of our
clients and members. You may not display, reproduce, copy, modify, license,
sell or disseminate in any manner any information included herein, without
the express permission of the Publisher. Kindly read our Terms of Use and
respect our Copyright.
We respect your online privacy. If you have received this mail in error or
are not interested in receiving this further, please accept our apology and
reply with a request to be removed in the 'Subject' from our mailing list.
© 2001-2010 HR & Benefits Essentials - All rights reserved