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A Better Partnership


Jul 2009
July 24, 2009

HR Focus - Summer 2009

Editor's Note - Use Common Sense Before Trouble Occurs

The workplace gets a little more complicated every day. In this issue you will find stories about new amendments to HIPAA, electronic disclosure options for benefit documents and an analysis of Supreme Court nominee Judge Sonia Sotomayor’s voting record as it pertains to employers.

You'll also find out that the world isn't flat which, in its own way, is another complicated story.

But you'll also find a story, which starts on Page 1, that should restore your faith in common sense. "You Don't Really Want To Call Me, Do You?" is written by an employment litigator, Liz Von Eitzen, and deals with one of the most frightening topics in the workplace:  Sexual harassment.

Liz's story contains an example of an employer who fired an employee after he was accused of sexual harassment. In this instance, however, the problem is that the employer did not conduct a thorough investigation before the termination and ended up being sued by the alleged harasser. (Sample line of reasoning:  "I really don’t have any choice. She knows a lot of attorneys; I'm afraid she'll sue me." The attorney for the accused probably had a field day with that one.)

Obviously no one reading this newsletter would succumb to such logic (because you're all clients and friends of Warner Norcross & Judd). However, should you ever find yourself in a similar situation, there are a number of common-sense steps that must be followed, and Liz spells them out in her article.

Conduct a complete and full investigation. This seems like a no-brainer, but the employer in the example neglected to do so and found himself being sued – for sexual discrimination.

Interview employees and have interviewees sign their statements. Again, common sense tells us that every claim of sexual harassment must be taken seriously. Asking (but not requiring) that interviewees sign statements lends teeth to the investigation.

Make a good faith effort to prevent harassment and limit contact between accuser and accused. Loosely translated:  Don't put the alleged victim back in the same cubicle pod next to the accused. There must be a fair way to separate them during the investigation.

Make a credibility determination based on the totality of the information available. In lawyer-speak, this means innocent until proven guilty by all the facts gathered during the investigation.

Following these steps should keep you out of the courtroom. However, here's another common-sense tip:  Put this investigation process in place before an incident occurs. That's really the best time to call Liz.

The Editors

IRS Sets 2010 Limits for HSAs

The U.S. Treasury Department and Internal Revenue Service recently released the 2010 indexed amounts, adjusted for inflation, for high-deductible health plans (HDHPs) and health savings accounts (HSAs) under Code section 223(g). The table below summarizes key 2009 and 2010 limits:



Calendar Year 2009

Calendar Year 2010






Annual HSA Contribution Limit





HDHP Minimum Deductible





HDHP Maximum Out-of-Pocket Limit
(includes deductibles, co-payments and other amounts but not premiums)





Catch-Up Contribution Limit
(age 55 or older by year-end)*



*If a spouse is also 55 or older, a catch-up contribution ($1,000 in 2009, $1,000 in 2010) may also be made to the spouse's separate HSA account if the spouse is HSA-eligible.

I Was Wondering

Q: If a license is required to work in a particular industry, is the employer required to pay for the tests and test time?

A: No. An employer is not required to pay for an employee's time spent on items like licensing that is a benefit to the employee even outside of his or her employment with the employer. Along these same lines, there are some circumstances where an employer does not have to pay a trainee for training with the employer that occurs before the trainee becomes an "employee." In order to take advantage of this exception, however, the training (even if it involves actual operations of the employer) must be similar to that which would be given in a vocational school; the training must be for the benefit of the trainee; the trainee must not replace regular employees but instead work under their close observation; the employer that provides the training must derive no immediate advantage from the activities of the trainee; the trainee must not necessarily be entitled to a job at the completion of the training; and the employer and trainee must understand that the trainee is not entitled to wages for the time spent in the training.

Q: Can an employer make direct deposit mandatory?

A: No. The Michigan Payment of Wages Act requires an employer receive an employee's full, free and written consent for direct deposit or any alternate form of payment. The one exception is if an employer had a payroll debit card program in place before November 1, 2005. Such an employer can continue the program and pay via debit card without their employees' consent.

'I Was Wondering . . ' gives readers an opportunity to ask questions of our HR attorneys. Not all questions will be answered publicly. To submit a question, please send it by e-mail to Sharon Sprague at

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