Good & Bad News: Recent Rulings on Abusive Work Environments

searchIf you’ve ever dealt with litigation over workplace stress, you’ll be glad to know that the court doesn’t always side with the employees. Here are a couple of examples:

  • Some times referred to as the “Goldilocks decision”, the first case involves a plaintiff who requested an accommodation of a less stressful job. The transfer was allowed. The employee didn’t find the transfer to be interesting enough so asked for the accommodation of a transfer to a middle-of-the-road stress job. The court held that it was not reasonable to ask for a “just right amount of stress” job.
  • In November of last year, a Florida District Court decided that an employee cannot immunize herself or himself from stress and criticism in general. In this case the employee had requested an accommodation from a supervisor’s “hostile confrontations.” The court commented that the obligation to make a reasonable accommodation does not extend to providing an “aggravation-free” or “peaceful calm” environment.

Yet, it’s not all good news. California employers continue to deal with hostile environment and constructive discharge claims arising out of what is described as “bullying.”

The courts have made it clear that the manner of conducting discipline rises to the statutory definition of abusive conduct when the discipline is “harshly and constantly criticizing” of one individual. Public criticism of an employee often is seen as unprofessional and stress producing.

On the other hand, most states have uniformly found that stress claims arising out of disciplinary action or performance improvement plans are not covered under workers’ compensation law.

A Case in Point: An employer recently allowed an employee who was the vice president of finance to work at home. The VP’s job required her to be available for on the spot determinations regarding cash flow. The employee said that she suffered from an anxiety disability and requested an accommodation that she be given 15 minutes time before responding to telephone requests for cash flow estimates. It would seem that this would not be a reasonable accommodation because it would reduce the company’s ability to compete. Nonetheless the employee filed a lawsuit.

Although this seemed like a frivolous claim, the company narrowly avoided bankruptcy given the huge legal fees they were forced to pay.

Clearly these doctrines are in conflict. How are employers supposed to navigate these murky waters when legal authority is uncertain?

So, what is learned from this? It’s important to train managers to run to the HR department whenever the word “stress” crops up. Additionally, managers should be trained that discipline should always take place in private. In our society, yelling at an employee in front of coworkers is thought to be abusive.

Reduce risk by always engaging in an interactive process when an accommodation is requested. At these sessions, employees can learn what the rules require—and what they don’t­—in terms of reasonableness of requests. Make sure they know that a Goldilocks accommodation is not reasonable.

Finally, in job interviews and in job descriptions it should be clear that some jobs involve pressure. Employees should be aware that the ability to handle pressure and ambiguity is a requirement of the job.


We get calls constantly from business owners that are frustrated with the high cost of Business Health Insurance and Employee Benefits.  Because Business Health Insurance is so complicated and confusing, HR Directors and CFOs rely on their broker to help them.  Most times the brokers are clueless too.  Unless someone specializes in Employee Benefits or Business Health Insurance, their info is many times either outdated or flat out wrong.  There are only so many hours in the day…you can’t be an expert at everything.

Having an Employee Benefits Broker that specializes is like gold

When you rely on your broker for the correct info, they had better be right.  Just as an example, if a broker miscalculates the business health insurance and they enroll a group of 20 employees,  there could be waste of $1000-$3000 a month, because they’re on the wrong business health insurance plan.  That could be enrolling employees into a plan that is more expensive than they need, or even worse, they enroll them into plans with a limited or skinny network.   That brings up another point to all of this.  The crazy network issues that are happening now will all of the carriers

Business Health Insurance networks are crazy in 2017

Health Insurance networks are the number ONE issue that is causing disruption in the Employee Benefits world, hands down.  Take Anthem for example…for Business Health Insurance plans for companies with under 100 employees there are 6 different networks available….SIX!  Unless your Employee Benefits broker has the experience dealing with all of these…you’re running the risk of enrolling into something you’ll majorly regret.

When you have a minute…Google Anthem Blue Cross network litigation.  Its page after page of issues that consumers and businesses have experienced not knowing the difference between the networks and how to navigate them.  Its a HUGE problem, not only with Anthem, but all of them.  Kaiser excluded of course!

The main theme here is to find a Benefits Broker that knows the industry, what they’re doing and specializes in the crazy industry known as Employee Benefits or Business Health Insurance.


Most people are not sure what’s going to happen with the ACA, Affordable Care Act, and what a replacement would look like.  Recently there has been much fighting about what the changes are, when it would take effect, and who would pay for it.  The last thing we need is to have it rammed down our throat like the ACA.  TrumpCare, honestly, would probably look a lot like what we have now, but the mechanism of how we buy would change.  Definitely more carriers in the mix would help, but the bottom line issue is the cost of care

Health Insurance is expensive because the cost of care is expensive

Its really as simple as that.  If you can’t drive down the cost of the services, this will never become affordable.  That is the bottom line.  Whether its TrumpCare, ObamaCare, or anything else, insurance rates will continue to rise until we get a handle on the healthcare system we have.  The Affordable Care Act was not Health Reform…it was Insurance Reform.  I was not against the insurance reform, but when you’re talking about pricing, this is an empty conversation.  There are just too many factors that affect the cost of health care.  Its a very complicated problem.

Driving down the cost of health care, no easy answers

There are probably 15 different issues that affect the cost of care, prescription drugs, hospital costs, fraud, end of life procedures, etc…  There are no easy answers to this.  TrumpCare in San Jose or any city will have to address these in the coming years.  For the last few years, employers have been passing on the cost increases to their employees.  I don’t see that changing


International Companies looking for Health Insurance options

If you are a company that have worldwide employees, there are Global Health Insurance products that may be a good fit.  When you have over 100 employees worldwide with locations inside the US, Global plans are very flexible and a great option.  They can be a bit pricey, but enrollment and flexibility in tailoring the plans is much better than domestic plans like Anthem Blue Cross, Kaiser, Aetna, etc..  Currently we insure companies from Singapore, India, and England using the Global Health Insurance options.  When your company have needs of interchanging employees, the option of insuring overseas employees and dependents, or have an unusual payroll mechanism, International Health Plans are a great fit

International companies struggle with employees with visas and obtaining health insurance

Many times, we help companies that have issues with the typical domestic US Health Plans that don’t fit with their needs.  The Global Plans are super flexible with how companies structure their plans and benefits.  They can tailor the deductible, copays and even the benefits offered.  The pricing is adjusted accordingly.  The pricing structure of International Health Plans use a composite rating, meaning that if you are 18 or  60 years old, you pay the same price for the plan.  This can be good or bad depending on the demographics of your International Company

Comparing Expat Health Plans

When you are considering an Expat Health International Health Plan, the differences can be significant.  Some companies accept a larger US citizen population than others.  Others have a better International network than others.  The International community is relatively small, so many of the International carrier reps have worked for several of the companies.

Variety of insurance carriers that offer Global-International-Expat plans

There are 6International carriers that most employers work with.  Blue Cross Geo, Aetna, Cigna, United HealthCare, Bupa, and GBG.  Any other carriers I’d be suspicious.  Their International networks are vast and far reaching.


Brauer Insurance can help you translate the Global and International Health Plans for you.


Group Health Insurance under TrumpCare, what to expect

There will be no drastic changes for at least 2 years

When you have something as big as the ACA, Affordable Care Act, to make any changes of any consequence will take many months, even years.  The gigantic entity known as Covered California is not something that you can replace or even deal with, until you have something that you can replace it with.  I get calls daily from worried people that think their health insurance will be cancelled or taken away, or that their subsidy will stop.  Rest assured that none of that will happen.

Subsidies for health insurance are here to stay

Now that people are used to getting subsidies, to take them away would be chaos.  They will change them, most certainly, but stopping them will not happen.  How they are structured, how long you receive them, and who gets them, should change.  We have many people that have qualified to received government subsidies that are millionaires, seriously.  Someone that is able to adjust what their Gross Income shows, can potentially get their health insurance paid by the government.  There have been many people that are getting the subsidies that should not and that should stop.

Potential changes in how Group Health Insurance is delivered under Trump and TrumpCare

Trump has suggested to allow out of state insurance companies to sell Group Health Insurance to employers in California.  Not a bad idea and definitely worth a try.  Trump has suggested that health insurance premiums for employees and everyone, be tax free.  That would save people a ton of money on their taxes.  I’m confident there would be a yearly cap on what is deductible.  Under the Affordable Care Act (ACA), employers can still get a business deduction for any Employee Benefits they pay for.  Trump believes there should be a yearly limit on what employers can use as a business deduction.  The thought behind this is to encourage employers to purchase lower priced, higher deductible plans, hoping to curb Group Health Insurance utilization.  Honestly, I think its worth a try.

Bottom line….not a ton of changes coming any time soon.  Group Health Insurance, Employee Benefits, and Business Health Insurance is not going away


I get that question several times a day.  What changes are we looking at with TrumpCare?  That’s the million dollar question.  In reality, I don’t think the Group Health Plans that we have now will change much, at least not for several years.  Trump is proposing that consumers, along with businesses, be able to purchase Group Health Insurance and Health Insurance in general across state lines.  In theory, that sounds great.  Regulation of those companies will need to be studied and we may need to go to some sort of Federal monitoring system.

Group Health Insurance, Employee Benefits probably won’t change much

What we know now is that the vast majority of people obtain their Health Insurance through work.  Employee Benefits and Group Health Plans are a great way for companies to have a business deduction, offer some fantastic Employee Benefits to their workers, and employees can have their employer pay for part of the monthly premium of those Group Health Plans.  I’m anticipating more employee choice in the marketplace as well, with the HSA concept expanding.

HSA plans will probably be expanded through TrumpCare in the 2020’s

One of the Trump concepts involves expanding HSA type Health Insurance plans….basically making it a savings vehicle for the future.  I have to tell you, when the HSAs came out in 2004, I was a brand new broker, but saw them exploding in popularity.  These days they are wildly successful.  The only downside to the HSAs of today is that the pricing is not as attractive as years ago.  Today, most HSA plans are equal to, or even more expensive than your normal PPO plan…why?  Because ObamaCare has made it illegal for insurance companies to offer a plan (Bronze, Silver, Gold) that is not within 2% in “actuarial value” of the other plans in their category (Bronze, Silver, Gold).  Basically, there is no more incentive to purchase a high deductible HSA plan.



Wit240_F_55079262_fgBBx7Q5ETfLObYEmAc23ls4qBtETD7yh the best of intentions many employers craft, edit and perfect culture statements full of noble principles, only to then have them ignored or used as the butt of ongoing jokes. Why?

There are a variety of reasons. Some of them include:

  • Employees know the HR consultant wrote it. Senior management hasn’t really bought in and won’t play by the same rules.
  • The values promoted don’t transfer into actual behaviors employees have seen in action.
  • Employees whose workplace behaviors fall short of the cultural ideal get rewarded with bonuses and promotions anyway.

What to do? Start by making sure your values are framed in terms of well-defined behaviors. For example, one company has the Core Value “Embrace Change.” In behavioral terms, this could be phrased “Deals successfully with ambiguity and change.”

To be sure your values are put into action, make sure all performance feedback includes implementation of core values and behaviors. Then, don’t reward performers who aren’t walking the cultural talk.

Finally, develop your culture statement within your management team with input from a task force of employees. If you just slap standards designed by an outsider into your handbook, it is often received with skepticism—as it should be. It doesn’t take a lot of time to develop a cultural behavioral statement, so why not put in a couple of hours to have a culture your employees will respect?


What will be the changes with Group Health Insurance, Employee Benefits

Well…that’s the million dollar question.  Since Brauer Insurance ONLY does health insurance, we are at Ground Zero for any legislation and/or changes upcoming.  All of the associations that we belong to believe that Trump will not take away the availability of health insurance for people with pre-existing conditions, or the ability for parents to keep their kids on their health insurance plan up to age 26.  There have been some talk about allowing out of state insurance companies to sell health insurance in CA.  In theory, this sounds good.  The problem may be the oversight of these out of state companies.

Out of State insurance companies selling in CA

One thing that comes to mind is that to regulate and control an insurance company out of Delaware, lets say, may not be as easy as one that has to answer to the CA Dept of Insurance, 3000 miles away.  Maybe having a Federal entity that controls and regulates these companies may be formed.  This idea has not been introduced yet, that I’m aware of, but in theory, it makes sense.

Nothing is going to happen until 2019

One thing is for sure….there will be little changes for the next 18-24 months.  You just can’t dismantle or change something of this magnitude overnight.  There is a ton of work to do, with any changes they make.  Either way, if you own a business, find yourself a broker that specializes in Group Health Insurance.  We will be the only ones that can translate what is going on, into English for business owners.  This dysfunctional industry is just too confusing for anyone to understand if you DONT specialize in it.

Group Health Insurance brokers are few and far between

When I started doing Group Health Benefits back in 2003, there were tons of us around….and it was a fairly easy industry to understand and write business.  When it imploded in 2010 with the ACA, many of the Group Health Brokers jumped ship.  Some are in the Real Estate business, others just plain retired.  Since this is my second career, I decided to immerse myself in this and I told myself…”If this fails, I’m going down with the ship”.  Best decision I’ve ever made.  Our business almost doubles each year BECAUSE we specialize in Group Health, and we’re pretty good at it.  Don’t take my word, check us out on Yelp, Google+, etc….

Brauer Insurance:  (408) 421-5555


Employers that want to “reimburse” their employees for health insurance

In years past, employers would set up agreements with their employees where they would “reimburse” the employees for health insurance that they purchased on their own….basically bypassing the employer from obtaining a Group Health Plan as required by law.  These employers may be subject to a $100/day excise tax per applicable employee (which is $36,500 per year, per employee) under section 4980D of the Internal Revenue Code.  I don’t write this to scare anyone into purchasing a Group Health Plan from us, but to educate them on the fairly new rules of the IRS.  I’ve known a couple of employers that have been caught doing this.  The penalties were not as stiff as the ones described here, but not cheap either.

Employers can bring on a Group Health Plan, with very little employees enrolling

Once a year, the ACA allows businesses to put together a Group Health Plan with no regard for the number of employees that enroll.  There can be 99 employees and if ONE of them wants to enroll, we’re all good!  That once a year time is during the month of November, for a January 1 effective date.  Many of our groups have taken advantage of this little secret, and are now enjoying the benefits of complying with the law AND being able to deduct this as a business expense.  Call us for more details

Other benefits to having a Group Health Plan with an employer

Another benefit to having a Group Health Plan in place is that anything that an employEE spends on Employee Benefits, can be paid for with pre-taxed money.  With the simple installation of a POP Section 125 plan, the employee saves tax money on what they spend and the employer gets to reduce his Workers Comp liability by lowering the taxable income of employees.  A win-win.  A second benefit to a Group Health Plan is that the benefits are usually much better with a Group Health Plan vs. an Individual or Personal Health Plan, and there are much more plans and carriers available to choose from.

At Brauer Insurance, use us as a resource.  I will answer any of your Employee Benefit questions with NO expectation of doing business.


If you are one of the unlucky employers that are looking at a huge increase in your Kaiser Group Health Insurance for this year, or even Anthem Blue Cross Group Health Insurance, CalChoice Group Health Insurance or any of the other ones, you are not alone.  The rating system has changed for employers with between 50-99 employees and how they are charged.  Kaiser Group Health Insurance for these groups used to be a composite rating, meaning there was one price for a single employee regardless of age.  Now everything is age rated, so a 20 something is cheap and a 50+ is super expensive.  So what do you do now?  That depends on how strategic you want to be.

Group Health Insurance strategies for Kaiser, Anthem, HealthNet, CalChoice, Aetna, Blue Shield groups

To be strategic in the Group Health Insurance marketplace you have to be willing to be a little flexible and think outside the box.  There are Self Funded plans, Partially Self funded plans and even strategies you can put together for you and your employees with a normal Kaiser Group Health Plan.  Education for these, for the employees, is the key.  If you are used to a very robust and/or expensive, all inclusive plan, moving to something else may be a problem.  It sometimes feels like a take away by the employees.  Not exactly what you’re looking for, I get it.

When you are strategic with Anthem, Kaiser, Blue Shield Group Health Insurance plans, you must be careful

The last thing you want to do with your Group Health Plan is for your employees to feel like you’re taking something away from them, or they’re being cheated.  That’s why the education portion of doing all of this is very important.  The employees MAY have to spend a little more than they’re used to.  That happens all the time, but educating them about the changes is crucial.  At Brauer Insurance, we are a very hands on agency.  We personally come out to our groups and explain the plans, changes and how it can benefit employees.  It seems simple, but you’d be surprised at how many brokers only email their renewals over once a year and make no effort to speak about Kaiser Group Health Insurance plans with employers