Tag Archives: unemployment

economy

3 Questions About On-Demand Economy

Last year, as Airbnb’s $25.5 billion valuation surpassed Hilton Hotels’ and Uber became the world’s most valuable privately owned company, it became clear the on-demand economy is no passing fad but is, in fact, a force to be reckoned with.

The on-demand marketplace is growing at a dizzying pace as new companies emerge daily, helping connect a diverse workforce of tradespeople, licensed professionals and unskilled laborers to a market of willing buyers through the company’s platforms. Intuit projects the population of U.S. on-demand workers will more than double by 2020, which means that, if you can’t already summon a doctor, lawyer, babysitter or dog walker right now via an on-demand app, then sit tight—they’re coming soon to a smartphone near you.

But the scale and speed of the on-demand economy’s growth also means policymakers, regulators, insurers and on-demand companies will have to huddle quickly to resolve the issues that arise with this expanding marketplace and its workforce. Here are the three key questions we need to address immediately:

  1. When the safeguards of the traditional corporation no longer exist, how do we protect the on-demand workforce?

Uber is currently appealing a case it lost against the California Labor Commissioner last summer regarding whether a driver is an independent contractor or an employee. While establishing this distinction is a critical issue, we still need to address some big questions about the vast self-employed workforce in the on-demand economy.

A good primer question: How do we get the information we need to make informed policy decisions? Independent contractors in the on-demand economy are classified as part of a larger pool of temporary, seasonal, part-time and freelance workforce called “contingent” workers. A 2015 U.S. Government Accountability Office report cites this workforce as somewhere between less than 5% and more than one-third of the country’s overall labor pool. The big gap in this measurement is because it depends on how jobs are defined and on the data source; the broad definitions and lack of clear data on this workforce makes on-demand independent contractors and their needs tough to track and evaluate. How much of this workforce depends on this income for supplementary purposes as opposed to relying on this income as a full-time living?

According to Intuit’s study, contingent workers will make up 40% of the U.S. workforce by 2020. That’s a lot of people working without the safeguards provided by the traditional corporation—guaranteed minimum wage, steady income, unemployment insurance, healthcare, workers’ compensation and disability insurance. What kind of safety nets do we need to put in place to protect this workforce? And what does this growing workforce mean in terms of policy development? How does the social contract change?

  1. How should we regulate hybrid commercial/consumer activities?

A sticky issue surrounding the on-demand economy is how to regulate commercial activities that are conducted by individuals rather than by traditional businesses.

While some argue that an Airbnb property should be as heavily regulated as a hotel if a host is accepting payment for lodgings, drawing an apples-to-apples comparison between the two is a challenge. For example, treehouses, yurts, igloos and lighthouses were among the top-10 most desirable vacation destinations on Airbnb shopper’s wish lists last year, some fetching upward of $350 a night. Who exactly should you call about making sure the igloo is up to code before guests arrive?

Some of the services and products offered by the individual through on-demand platforms have never been available through traditional enterprises; they’re unique, intimate experiences and, before on-demand platforms made them accessible, were difficult to find. We’re entering a new frontier where many tourists covet a culinary experience they can book at a local’s house via apps such as Feastly or Kitchensurfing rather than a fine dining restaurant, or they prefer offbeat accommodations booked through Airbnb to a 5-star hotel. We can’t assess how to best regulate these individual commercial activities until we have more data and understand the risks. How do we collect that data? How do we ensure the safety and protection of the individuals operating and participating in these activities until we have the information necessary to adequately regulate them?

  1. How can a square peg workforce function in a round hole system?

Mortgages, loans, credit cards, leases … these are just a few of life’s niceties (or necessities) that are challenging for an on-demand independent contractor to secure. Our current financial services, systems and policies were built to work for employees who collect a regular paycheck as well as freelancers who have reliable cash flow through long-term contracts and monthly retainers. Independent contractors working through on-demand platforms tend to rely on short-term gigs often generated through multiple sources, and they have difficulty predicting their day-to-day income, never mind their annual net or gross.

This isn’t a niche workforce. If independent contractors represent 40% of the U.S. working population in 2020, they’re significant drivers of the economy. They generate income and pay taxes; they need homes, cars, work equipment and all the other stuff that keeps their businesses running and makes their lives worth living. We can’t dismiss their needs, because we are measuring their 21st century income with a 20th century yardstick. How do we retrofit our round-hole systems to include this square peg workforce?

If we want a thriving economy in which people enjoy the benefits of the on-demand economy, and doctors, lawyers, drivers, plumbers and everyone else serving the on-demand marketplace have equal opportunity to succeed, then the time to talk about these questions and issues is now.

The Global Risks Report 2016

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Over the past decade, the Global Risks Report has expanded its scope from analyzing the connected and rapidly evolving nature of global risks to also putting forward solutions and calling for public-private collaboration in strengthening resilience. Now in its 11th edition, the report describes a world in which risks are becoming more imminent and have wide-ranging impact: Tensions between countries affect businesses; unresolved, protracted crises have resulted in the largest number of refugees globally since World War II; terrorist attacks take an increasing toll on human lives and stifle economies; droughts occur in California, and floods happen in South Asia; and rapid advances in technologies are coupled with ever-growing cyber fragilities and persistent unemployment and underemployment.

Implications of sweeping digitization (also termed the “Fourth Industrial Revolution”) – ranging from transformations that are the result of rising cyber connectivity to the potential effects of innovations on socioeconomic equality and global security – remain far from fully understood. At the same time, climate change is unequivocally happening, and there is no turning back time.

The increasing volatility, complexity and ambiguity of the world not only heightens uncertainty around the “which,” “when,” “where” and “who” of addressing global risks but also clouds the solutions space. We need clear thinking about new levers that will enable a wide range of stakeholders to jointly address global risks, which cannot be dealt with in a centralized way.

Taken together, the situation calls for a resilience imperative – an urgent necessity to find new avenues and more opportunities to mitigate, adapt to and build resilience against global risks and threats through collaboration among different stakeholders.

By putting the resilience imperative at its core, this year’s Global Risks Report combines four parts to present an analysis of different aspects of global risks – across both global risks and stakeholders – focused as much on the search for solutions as on the analysis of the risks themselves.

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To download the report, click here.

When Are Background Checks Not Allowed?

The Equal Employment Opportunity Commission (EEOC) has been quite active in challenging employers’ use of criminal background and credit history checks during hiring. There is still significant uncertainty as to the current standards and law about the checks of criminal and credit history. The lack solid guidance makes it difficult for employers to determine how to evaluate their current use of this information, as well as to understand the legal pitfalls and hurdles that the EEOC has placed in front of them.

EEOC Directives

The recent activity emanates from the EEOC’s recent directive and key priority (as per its December 2012 Strategic Enforcement Plan (SEP)) to eliminate hiring barriers. This priority includes challenges to policies and practices that exclude applicants based on criminal history or credit check. The EEOC has a keen interest in this area, as it believes that criminal/credit checks have a disparate impact on African American and Hispanic applicants. As the EEOC pursues the directive, expect the EEOC to scrutinize failure-to-hire claims where a criminal history or background check was conducted. Even if the background check was “facially neutral” and was uniformly given to all applicants, the EEOC may investigate to determine if the check had a “discriminatory effect” on certain applicant(s).

The EEOC asserts that criminal background checks must be “job-related” and “consistent with business necessity.” Employers are advised to consider: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct or completion of the sentence; and (3) the nature of the job held or sought. The EEOC stresses the need for an “individualized assessment” before excluding an applicant based on a criminal or credit record.

Local/State/Federal Laws

Employers face additional legal hurdles regarding hiring practices because of recent local and state legislative developments. These laws are commonly referred to as “ban the box” (i.e., restrictions on the use of criminal history in hiring and employment decisions). Making matters even more difficult, employers have also been subject to a surge in class action litigation under the Fair Credit Reporting Act (FCRA). The FCRA regulates the use of and gathering of criminal histories through third-party consumer reporting agencies with respect to conducting background checks on applicants or employees.

Legal Actions

In pursuit of its directive, the EEOC has filed several large-scale lawsuits against employers. We expect that the EEOC will continue to file similar lawsuits throughout 2015 and beyond. Most have been brought as failure-to-hire claims. For example, an African-American woman brought a claim alleging that she was discriminated against based on her credit history. This claim started out as a single plaintiff action, but, after the EEOC conducted its initial investigation, the EEOC dramatically expanded the scope of the initial charge, alleging that the employer was engaging in a “pattern and practice of unlawful discrimination” against: (1) African-American applicants by using poor credit history as a hiring criterion and (2) African-American, Hispanic and white male applicants by using criminal history as a hiring criterion.

Reasonable employers complain that the EEOC has placed employers in a Catch 22. Employers have to choose between ignoring criminal history and credit background, exposing themselves to potential liability for criminal and fraudulent acts committed by employees or to an EEOC lawsuit for having used this information in a discriminatory way.

Takeaway for Employers

Claims involving criminal background checks and credit checks are an EEOC priority. At this time, employers have little guidance from the courts or the EEOC as to exactly what “job-related” and “consistent with business necessity” mean and just how closely a past criminal conviction has to correspond with the duties of a particular job for an employer to legally deny employment to an applicant. Moreover, employers continue to witness expanding restrictions dealing with criminal history at the state and local level based on ban-the-box legislation, as well as with an increasing number of class action lawsuits involving background checks as required under the Fair Credit Reporting Act.

Employers are encouraged to work closely with legal counsel as to what they should and should not ask on applicants as well as how and when they can use background information they obtain. Based on this evolving area of the law, we additionally recommend that employers purchase a robust EPL policy that will defend them in the event that the EEOC or a well-skilled plaintiff’s counsel pursues a claim against them for discrimination, or for failure to hire based on criminal or credit background checks.

66 Red Flags in Work Comp Claims

This article started as another “Top Ten” list, but I quickly realized that, when looking for potential fraud or compensability issues in a workers’ compensation claim, there are many more than 10 red flags – I came up with 66. You can probably think of more. Please add them in the comments.

The following is a loosely organized list of red flags signaling potential fraud or abuse by a workers’ compensation claimant. Keep in mind that even if the claim has all of these red flags, this does not necessarily mean the claimant is committing fraud or that you have grounds to deny compensability of a claim. However, the presence of some of these red flags should cause you to investigate further. Also note that I am using the term “fraud” broadly to include general wrongdoing on the part of the claimant and not specifically referring to a legal cause of action.

Here we go:

  1. Late reporting – If an employee is really injured on the job, it is unlikely the employee will wait days or weeks to report the injury.
  2. The details of the accident are sketchy.
  3. The employee has difficulty recalling what happened.
  4. The employee changes the description of the accident when inconsistencies are pointed out.
  5. The nature of the injury is not consistent with the nature of the work done by the employee.
  6. The date, time or location of the accident is unknown or forgotten.
  7. The details of the accident are inconsistent with the employee job duties.
  8. The accident occurs in an area where the injured employee would not normally be.
  9. Fellow workers hear rumors circulating that the accident was not legitimate.
  10. The employee gives completely different versions of the accident to the employer, the adjuster and the doctor.
  11. The employee keeps modifying the story of what happened.
  12. The employee leaves out pertinent information.
  13. The details of the accident vary from medical report to medical report.
  14. There are no witnesses to the accident, and the employee normally works around other people.
  15. There are witnesses, but their version of the accident differs from the employee’s.
  16. The nature of the injury is unusual for the employee’s line of work.
  17. The employee’s co-workers express doubt that the accident occurred.
  18. The employee is disgruntled about some aspect of his job.
  19. The employee was demoted or passed over for a promotion.
  20. The employee is on the list to be laid off.
  21. The employee is on “positive improvement needed” status and is about to be terminated.
  22. The employee has had numerous prior employers.
  23. The “accident” occurs immediately before a strike, plant closing or the end of seasonal employment.
  24. The employee is a new hire.
  25. The accident occurs near the end of probationary period.
  26. The claimant is a seasonal worker.
  27. The employee has an early Monday morning accident before the supervisor or other employees see him on the job (meaning the accident might have occurred off the job over the weekend).
  28. The injured employee is not at home during the normal workday.
  29. The employee is always sleeping when the adjuster calls or cannot be disturbed.
  30. The employee’s family member is vague or noncommittal about when you can reach the employee.
  31. The employee uses the address of friends or family members and has no definite address or uses a Post Office box as an address.
  32. The employee’s spouse is not working and is drawing workers’ comp indemnity benefits, Social Security disability payments, welfare or unemployment insurance, and the employee wants the same lifestyle.
  33. The employee inquires about a settlement early in the claim process.
  34. The employee was having financial problems.
  35. The employee is nearing retirement age.
  36. The employee files for benefits in a state other than where the accident occurred.
  37. The employee fails to report other work income while drawing indemnity benefits.
  38. The employee took excessive time off just before the injury.
  39. The employee is in the middle of a divorce or other family disturbance.
  40. The Social Security number used by the employee belongs to someone else.
  41. The employee applies for Social Security benefits before the injury occurs.
  42. Income from workers’ comp, disability or other sources exceeds the employees prior after-tax income.
  43. The employee protests about returning to work and never seems to improve.
  44. All the injuries are subjective – pain without trauma, soft-tissue, emotional.
  45. The employee changes doctors frequently (“doctor shopping”) or changes doctors when released to return to work.
  46. The employee has excessive treatment for soft-tissue injuries.
  47. The medical treatment reported by the employee is different from the medical care stated in the medical reports.
  48. The nature of the medical treatment changes from one body part to another after the employee has been treating for a while.
  49. The employee misses medical appointments.
  50. The employee fails to show up for an independent medical examination.
  51. The employee refuses or delays diagnostic testing.
  52. There are whiteouts, corrections or erasures on medical forms submitted by the employee.
  53. Pain is exaggerated.
  54. Invalid or inconsistent effort is reported on the functional capacity evaluation.
  55. The employee has a history of multiple workers’ comp claims or reporting subjective claims of injury.
  56. The injury relates to a preexisting medical condition or health problem.
  57. The length of recovery is excessive for the nature of the injury.
  58. The employee who has been off work for a while has calluses on hands or grime under the fingernails.
  59. The medical reports reflect “muscular,” “tanned” or other adjectives that reflect that the employee is in good health.
  60. The employee is unable to work because of the injury but is seen painting her house, mowing the lawn, carrying heavy objects, etc.
  61. The employee has a high-risk hobby or does other activities involving considerable physical exertion.
  62. Surveillance reflects physical activity greater than what is reflected in the medical reports.
  63. The employee is unusually pushy to settle the workers’ comp claim.
  64. The employee has extensive medical knowledge but no training in the medical field, or uses extensive insurance terminology but has no work experience in the insurance field.
  65. The employee is a part of a group of employees using the same doctor and the same attorney for their workers’ comp injuries.
  66. The attorney’s letter of representation is the same day of the injury or even dated before the “injury.”

Please share your experiences in the comments!

Disclaimer: The information in this article does not constitute legal advice, nor is it intended to create an attorney-client relationship. Every situation is unique, and I encourage you to seek legal advice from a licensed attorney for your particular situation.

The Daily Grind Is Good for the Mind

The human brain thrives on what work gives us: activity, routine, social contact and identity.

The act of working gives employees far more than just the benefit of earned income. The World Health Organization names it as a health factor that, when present, contributes to health and, when absent, can increase the chances of ill health. This is particularly relevant in the discussion about mental health. What is it about work that contributes to mental health, and why should employers and insurers consider the health benefits of work?

Activity

When human beings are engaged in doing things, areas of the brain related to attentiveness are stimulated. When someone is off work, it is harder to find regular daily activity—it is not as easy to find the many everyday behaviors we do when we are working. Work provides a structure that tells us what to do. We then engage in hundreds of behaviors every day. Being in the act of doing these behaviors keeps us healthy. When we are not working, it can be hard to answer the question: “So what did you do today?” This absence of activity can have a profound impact on a person’s sense of accomplishment and purpose, which has an impact on mental health.

Routine

Work forces us into a rhythm and regular behavioral patterns that are actually good for us, even if sometimes we may resent the structure. Our bodies and brains enjoy the routine and benefit from the repeated predictable patterns of behavior. If we don’t have something to get out of bed for, it can be difficult to get out of bed. When someone is off work for any reason, the lack of daily direction can have a significant impact on well-being.

Social contact

We spend more waking hours with the people we work with (when we are working full-time hours) than with the people we love and live with. Human beings as mammals are social creatures and seek and thrive on social contact. Neural activity related to social contact is crucial to mental health, and social isolation is a risk factor for mental illness. We are connected to our co-workers because we are social beings who are genetically programmed to monitor and build social connections. We rely on the hundreds of exchanges inside the social context at work to meet our needs for belonging and connection. When people are off work, they lose this continuing social contact, and the isolation has a significant impact on well-being.

Identity

Work gives us identity. When we work we have a title, a position, a clearly defined set of tasks and a label that provides information to the world about who we are, this informs us about who we are in relation to others, and in how we view ourselves. Loss of this identifier has a significant negative impact on self-esteem and self-worth, with a predictable risk to mental health. When employees are off work, it is hard for them to answer the common question: “So, what do you do?”

Any person facing unemployment experiences changes in all of these factors and is at risk for developing mental health issues. A person who already is experiencing mental health challenges, and then goes off work, may find it difficult to build steady recovery, because the essential health need of work is not present.

Many disability plans have an all-or-nothing approach to an employee’s ability to work. If employees are off work, they are deemed not able to work. If employees wish to find regular daily activity to help build their recovery, they may put their claim at risk. This approach to disability management may actually be making employees stay off work longer. The longer an employee is off work, the harder it is to return to work. Systems that do not allow employees who are on a disability claim to work, even to perform volunteer work, are preventing employees from tapping into the health benefits of working and may be contributing to needless work disability.

Employers may also have the mindset that an employee who is sick should be off work. When it comes to mental health issues, it is not best practice to use this all-or-nothing approach. The key here is for employers to have the capacity to address individual employee needs as they return to work or, better yet, have flexible processes and structures that allow employees to stay at work. Staying at work during early days of recovery could be part-time, with the disability benefit covering the balance of an employee’s income from salary.

Continuing activity, routine, social contact and identity build employee recovery and can reduce the cost of the disability claim. There is less work disruption, and continuity can be maintained for the employee and the family, the work team and the organization. This contributes to increased employee health. And healthy employees are productive and engaged employees.