Consolidation Has Far Reaching
Effects on the
Sales Side

For over 10 years, the optical industry has been in the midst of consolidation—from manufacturers through retail ECPs and even smaller optometric practices. The fact that it began in the optical industry was no surprise; what was a surprise was the magnitude and the length of time it has continued.

ECPs work closely with many segments of the optical industry, including manufacturers of frames, lenses, equipment and supplies, primarily through sales representatives who are employed by these companies. Sales representatives are indeed representatives: of their company and its products and of you and your practice to your patients. While they may have sales to you of their products as a top priority, they also have as a principal objective providing you with exceptional service—timely and comprehensive information, training of your practice staff, literature for your patients, marketing and sales techniques and strategies and much more.

In today's competitive market and with the challenge of providing exceptional patient care and continuous service to your patients, now is a good time to schedule to meet with each of your sales representatives and review their portfolio of products and services that can be of greatest benefit to you and your patients. Remember, sales reps are your partners in business regardless of what may be happening in the optical industry in terms of mergers and acquisitions or other changes in ownership structure. So take a moment to express your appreciation for the services they provide to you and your team.

Our continuing objective at Business Essentials is to be a primary source of information to assist you in the ownership and management of your practice. To do so, we will continue to provide you with timely and relevant information. If we are achieving our objective, please take a moment and let us know. Likewise, if there are topics or there is information of relevance that would be of benefit to you, please include your suggestions.

Hedley Lawson brings over 25 years of optical industry experience to Jobson Medical LLC. For over 10 years, he has been a contributing editor to VM, most recently as writer of the monthly column "Business Essentials." He is the Contributing Editor of VM's
E-Newsletter Business Essentials. Contact Business Essentials with questions or comments.

Giving Up a Scheduled Vacation

Q: Can an employer mandate an employee to come to work on their day off or if they are on vacation, for a bi-yearly "mandatory" staff meeting?

A: The answer is "It depends" on some of the following factors:

1. Did the employee know in advance of the scheduled meeting? If employees know of a bi-yearly "mandatory" staff meeting, then management should not approve employee requests for vacation when such meetings are scheduled by the company. For a scheduled day off, the company can consider rescheduling that day off to another day, subject to whether or not such change is in the same work week. (Check with your company counsel regarding changes in work schedules within our outside of a specifically designated work week as laws do vary from state to state.)

2. Is the employee a member of a collective bargaining unit? If so, the requirements of when and under what circumstances one is required to work or the terms associated with working on scheduled days off or holidays are typically outlined in the Bargaining Agreement (Contract).

3. Do you have an Employee Handbook and, if so, does your handbook speak to issues associated with required work on a day off, scheduled vacation, or holiday? If not, you should consider adding such language. If you do not have this defined in your handbook, you should do so and then inform employees that there may be occasions when they are required to work on scheduled days off, approved vacation, or a company-observed holiday. In cases where a non-exempt employee will be working in excess of 40-hours in a work week as a result of this policy, inform them that such work time will be subject to your overtime policies. (The requirement for overtime payment varies from state to state, so do contact your local Chamber of Commerce or company counsel for specific information.)

This question was submitted by Keith Brilbec. If you have a question or issue for one of our experts, contact Business Essentials.

—Hedley Lawson, Jr.

The Perils of Workplace Romances

Everyone knows that business and pleasure are not always the right mix. Sometimes, highly intelligent, successful and prominent people can suffer the slings and arrows of a workplace romance gone bad. When at work relationships turn sour, chances are good that the comfort level can plummet for the lovebirds and their co-workers. So how can you keep employees' personal lives from disrupting your business?

Workplace romances have probably been around as long as workplaces, and it's likely they've caused problems since then. Many employers have non-fraternization policies. So why are workplace romances on the rise?

First, people are marrying later and working longer hours. That keeps available people in close proximity more of the time. Second, work is a "safe" place to meet people—you get to know them over time and, at the least, you know they have a job and the wherewithal to show up for it.

Surveys suggest that up to half the people at work have relationships with co-workers, of which some 20 percent became permanent. It also means that four out of five relationships which begin at work come to an end. That adds up to a lot of discomfort in the workplace. And when an office romance goes sour, the prospect of a lawsuit goes up.

In general, there are three particular types of lawsuits that emerge from office romances gone bad: Participant claims (typically sexual harassment or retaliation claims that arise after a relationship ends); paramour favoritism claims (from third parties who claim that they were impacted by the relationship); and spurned lover claims (which also may be harassment or retaliation claims).

So how can you and your ECP avoid possible legal claims? The following points will be helpful to ECP owners and managers who want to get out in front of possible claims related to workplace romance.

1. Draft realistic policies, and apply them uniformly
A formal policy should prohibit relationships that create an actual or perceived conflict of interest. As well, they should require employees to behave in a professional manner, and keep their personal relationships out of the work environment. And you should clearly state the potential consequences for violating the policy.

2. Conduct regular training
Training is an inexpensive way for your practice to reduce its exposure because one of the first requests plaintiffs' counsel typically make in sexual harassment cases is for documents concerning the training the company provided to the alleged harasser. Further, companies that can produce evidence of yearly training and a well-disseminated anti-harassment policy are in a position to establish an "affirmative defense."

3. Limit involvement with a couple's problems
Employers should concern themselves with the potential or actual effect of a relationship on the job or organization, not with what passes between the people involved.

4. Prohibit manager/subordinate relationships
If one occurs, strongly discourage the relationship and advise the employees that one will have to move to a different position if available or be terminated if there are no alternate positions.

5. Advise employees that the company monitors communications
Let employees know if your practice monitors all e-mail correspondence and other forms of communication utilizing company equipment.

6. Document everything
As with most employment related activities, documentation is the key to preventing lawsuits and, potentially, winning them.

Back to Top

Misconceptions About Probationary Periods

Some companies use a 90-day probationary period to protect the firm from wrongful termination lawsuits if they need to fire a new employee. If you have an "at-will" policy does this contradict that policy and should you keep using a probationary period?

Probationary periods, also termed “introductory periods,” can be an effective tool for you to evaluate performance and limit benefits eligibility for new hires. However, the following misconceptions about introductory periods are common:

1. Introductory periods contradict at-will employment.
You may have heard that employment should be at-will from the first day, and that having an introductory period implies secure or guaranteed employment once the period is successfully completed.

However, the California Supreme Court recently clarified, in Dore v. Arnold Worldwide Inc., that simply having an introductory period does not contradict an employer's at-will policy as long as it is made clear that employment is at-will throughout the duration of employment.

2. An employee can be let go for any reason during the introductory period. You might terminate an employee during an introductory period, telling the employee "it just didn't work out." Many employers assume they are protected from wrongful termination or other lawsuits during any period they've defined as introductory. However, employees are protected from being fired for illegal reasons from the first moment they come to work for you.

An employee terminated during the introductory period might claim the termination was due to discrimination based on race, sex, national origin or any of the other classes protected by law.

Other claims might include wrongful termination in retaliation for reporting sexual harassment or for filing a workers' compensation claim.

Terminating an employee during an introductory period provides no legal protection against these claims. Therefore, you should always document a legitimate, non-discriminatory reason for terminating an employee, even within the introductory period.

3. Once the introductory period is over, it's a lot harder to fire the employee.
Introductory periods by themselves do not provide any particular legal protection to employers. Employment should clearly be at-will, both during the introductory period and for the entire duration of employment. Some keys to protecting yourself from legal claims stemming from introductory periods are:

• Have clear statements that employment is at-will in all employment documents, such as employee handbooks, offer letters, performance reviews, etc.

• Don't indicate that once an employee "passes probation," she/he becomes a "permanent employee." Those terms directly contradict the concept of at-will employment.

• Train managers so they know not to create oral contracts of employment by saying things such as "We're glad you're on board for the long haul" or "As long as you do a good job, you'll have a job with us."

4. Introductory periods protect employers from unemployment insurance (UI) claims.
Employees are eligible for UI benefits even if they are terminated during an introductory period. To calculate an employee's UI benefit, the state looks at a "base period" of one year, starting anywhere from three to six months before the termination (depending on what month the claim begins in). Only employers who paid wages to the employee in the base period have charges made to their reserve account for that claim.

You would not be a base period employer for an employee who worked for you for less than three months. However, your Unemployment Insurance reserve account may be charged if that same employee takes another job and quits or is fired during the period when you are the base period employer.

Job Losses Strain Gov't Health Care Costs, ECPs

Currently, 16 percent of the U.S. population is uninsured, which translates into approximately 47 million people. With a recession likely looming, researchers project that every percentage-point increase in unemployment will increase the number of uninsured Americans by approximately 1.1 million.

In addition, each 1 percent rise in unemployment will add 600,000 children and 400,000 adults to the State Children's Health Insurance Program and Medicaid. Researchers estimate that this would require an additional $3.4 billion in funding, with $1.4 billion coming from the states. While past administrations have faced similar situations, the impact of the current economic downturn, in combination with its proximity to the 2001 recession and rising health costs, might be worse than expected.

Source: The New York Times, April 29, 2008

White House May Soften Health Policy

The Bush Administration may be softening its opposition to state efforts to expand the State Children's Health Insurance Program. According to a letter sent to the states, they will be given more flexibility to prove they have enrolled 95 percent of eligible poor children, a condition laid out before the states could expand coverage beyond children from families at twice the poverty level. The White House has been under pressure from the Congress and legal challenges from several states.

In addition, each 1 percent rise in unemployment will add 600,000 children and 400,000 adults to the State Children's Health Insurance Program and Medicaid. Researchers estimate that this would require an additional $3.4 billion in funding, with $1.4 billion coming from the states. While past administrations have faced similar situations, the impact of the current economic downturn, in combination with its proximity to the 2001 recession and rising health costs, might be worse than expected.

Source: The Wall Street Journal, May 8, 2008

President Signs Genetic Nondiscrimination Legislation 

President Bush signed the Genetic Information Nondiscrimination Act of 2008 (GINA) into law (P.L. 110-233) on May 21. The new law prohibits group health plans or health insurers from requesting, requiring, or purchasing genetic information for underwriting purposes, to deny health coverage, or to raise premiums.

The law also bars employers, employment agencies, labor unions, and training programs from using genetic information to discriminate in employment. The health insurance provisions become effective for plan years that begin after May 21, 2009. (For calendar year group health plans, that effective date is Jan.1, 2010.) The employment provisions are effective Nov. 21, 2009.

View the full text of the law.

It's Your Business
Consolidation
Has Far Reaching
Effects on the
Sales Side

From the Top
The Perils
of Workplace Romances

Ask the Experts
Giving Up a
Scheduled Vacation

People Management
Misconceptions About Probationary Periods

Job Losses Strain Health Care Costs,
ECPs

White House May Soften Health Policy

Fast Facts
Older Americans
Looking for Help

Dollars & Sense
Anxious Times for
Standards of Living

SSA Adds Retirement
Estimator
to Web-Based
Benefits Calculators Suite

Rules and Regulations
President Signs Genetic Nondiscrimination Legislation

Resource Corner
Links to Important
Resources

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Workplace Romances

Dore vs. Arnold
Worldwide Inc.

The New York Times

State Children's Health Insurance Program

The Wall Street Journal

Genetic Information Nondiscrimination Act
of 2008 (GINA)

Legislation
(P.L. 110-233)

The Americans with Disabilities Act

AARP

The Washington Post