Many employers have policies that mandate termination after an employee has been on leave for a certain period of time, or that provide for light duty only to employees who are injured on the job. The EEOC, however, deems such policies to be a violation of the Americans with Disabilities Act (“ADA”).

Facts of the Case: In 2009, the EEOC filed a lawsuit against Jewel-Osco, a unit of the major grocery chain Supervalu, Inc., alleging that the Company violated the ADA by: terminating qualified employees with disabilities at the end of their authorized disability leave, rather than allowing them to return to work with restrictions; automatically terminating employees after they had been on leave for one year; and refusing to provide light duty for qualified employees with disabilities other than those injured on the job.

The Settlement: On January 5, 2011, the federal district court in Illinois approved a consent decree where the Company agreed to pay $3.2 million to 110 employees who were discharged pursuant to the challenged leave policies. In addition, under the terms of the consent decree, the Company agreed to extensive remedial relief, including: the hiring of consultants to review and recommend changes to the Company’s current job descriptions (e.g., confirm that the job descriptions contain accurate physical requirements for the jobs); regular reporting to the EEOC on its efforts to accommodate employees returning from medical leaves of absence; revisions to communications with employees on medical leaves of absence to assure them that they do not need to be fully healed to return to work and advise them of the types of accommodations that may be available to them if they want to return with restrictions; and mandatory training on the ADA’s requirements, including types of accommodations, for employees involved in making accommodation decisions.

Lessons Learned: This case emphasizes the EEOC’s focus on the ADA and reasonable accommodation issues. Following approval of the consent decree, John Hendrickson, regional attorney for the EEOC’s Chicago District Office (the district in which the lawsuit was pending) underscored this focus when he said, “It is vital that employers understand that the primary goal of the ADA is to allow people with disabilities to be active and productive members of the work force. Sending them home, with reduced or no pay, and without the ability to advance, thwarts that purpose. I am concerned that some employers believe that keeping an employee who is able to work off the job and on a leave of absence is a reasonable accommodation relieving them of further obligations under the ADA. Such a belief could lead to costly mistakes.”

Employers should review leave policies affecting employees with disabilities. The problem with the Jewel-Osco policy was that the Company gave no consideration as to whether an employee could return to work with a reasonable accommodation and simply applied its policy in a blanket fashion. Employers should review their job descriptions to ensure that they accurately describe the position’s essential functions. Employers should also provide ADA training to employees who are responsible for determining whether to offer an accommodation.

Article courtesy of Worklaw Network firm Shawe Rosenthal.

A few months ago, I published a report on the latest in the laws surrounding obese workers. Recently Terence Milford referred me to an excellent report by the NCCI on obesity and work comp claims: https://www.ncci.com/documents/obesity_research_brief.pdf. The figures aren’t pretty and show 3-5X increase in claims for obese workers. One more reason to coax, encourage, and inspire workers to better health!

On January 24, 2011, the United States Supreme Court unanimously held in Thompson v. North American Stainless, LP, that Title VII allows for “association retaliation” claims by individuals who have not themselves engaged in protected activity but are “associated” with someone who has. A cause of action for association retaliation has not been recognized previously, and this decision represents a fundamental change in the law.

FACTS OF THE CASE

Plaintiff Eric Thompson and his fiancée, Miriam Regalado, were employees of North American Stainless (NAS). In February 2003, the EEOC notified the employer that Regalado had filed a charge of discrimination alleging sex discrimination. Three weeks later, NAS fired Thompson. Thompson then filed a charge with the EEOC and, subsequently, a lawsuit, claiming that NAS fired him in order to retaliate against his fiancée. The trial court granted summary judgment in favor of NAS, concluding that Title VII does not permit third party retaliation claims. The Sixth Circuit affirmed that decision, and Thompson appealed to the U.S. Supreme Court.

THE COURT’S RULING

The Supreme Court held that Thompson can bring a cause of action for retaliation even though he was not the one who engaged in protected activity.

First, the Court held that NAS’s firing of Thompson constituted unlawful retaliation. Relying on the broad definition of retaliation set forth in Burlington N. & S. F. R. Co. v. White, the Court stated that a reasonable worker would be dissuaded from engaging in protected activity if she knew that her fiancée would be fired for her actions. The Court declined, however, to identify a fixed class of relationships for unlawful third-party retaliation claims and noted that “the significance of any given act of retaliation will often depend upon the particular circumstances.”

Then, the Court addressed the question of whether Thompson had a cause of action against NAS. Title VII provides that “a civil action may be brought . . . by the person claiming to be aggrieved.” The Court applied the common usage of the term “person aggrieved,” as interpreted in cases involving the Administrative Procedure Act. In those cases, the Court has held that a plaintiff may not sue unless he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” The Court concluded that Thompson fell within the zone of interests protected by Title VII because he was not an accidental victim of the retaliation; rather, injuring him was the employer’s intended means of harming the employee who filed the charge of discrimination.

Justice Ginsburg wrote a concurring opinion, joined by Justice Breyer, noting that the EEOC has a longstanding view that association retaliation is actionable under Title VII. Justice Kagan took no part in the decision.

LESSONS LEARNED

Until this case, “association retaliation” was not recognized by the courts. This ruling opens the doors to additional claims of retaliation by employees who have not, themselves, engaged in any protected activity, but have some relationship to the an employee who has. Accordingly, employers should use caution when disciplining employees who are relatives, spouses, or even close friends of an employee who has exercised his or her rights under Title VII.

To read the case in it’s entirety go to http://www.supremecourt.gov/opinions/10pdf/09-291.pdf.

Article courtesy of Worklaw Network firm Shawe Rosenthal.

For years I have warned that the EEOC has been building a case against companies using credit reports because they create a “disparate impact.” Their case has been emboldened by the fact that a number of states, including Hawaii, Washington, Oregon and Illinois, have recently banned or severely limited the use of credit reports in hiring, mainly out of worry that the practice could prevent unemployed, financially pressed Americans from getting back into the work force. Here’s what the Gov. of Illinois said in his press release:

CHICAGO – August 10, 2010. Governor Pat Quinn today signed a bill into law that prohibits Illinois employers from discriminating based on a job seeker or employee’s credit history. The new law will remove a significant barrier to employment for the growing segment of the population whose credit history has been affected by the historic national recession.

“A job seeker’s ability to earn a decent living should not depend on how well they are weathering the greatest economic recession since the 1930s,” said Governor Quinn. “This law will stop employers from denying a job or promotion based on information that is not an indicator of a person’s character or ability to do a job well.”

House Bill 4658, sponsored by Rep. Jack Franks (D-Woodstock) and Sen. Don Harmon (D-Oak Park), creates the Employee Credit Privacy Act. Under the act, Illinois’ employers may not use a person’s credit history to determine employment, recruiting, discharge or compensation.

The new law forbids employers from inquiring about an applicant or employee’s credit history or obtaining a copy of their credit report. The law does not affect an employer’s ability to conduct a thorough background investigation that does not contain a credit history or report.

Employers who violate the new law can be subject to civil liability for damages or injunctive relief.

Under the new law, employers may access credit checks under limited circumstances, including positions that involve: bonding or security per state or federal law; unsupervised access to more than $2,500; signatory power over businesses assets of more than $100; management and control of the business; access to personal, financial or confidential information, trade secrets, or state or national security information.

As much as I try to understand, I don’t get how it affects employment levels? Somebody is getting that job, perhaps just not the person with the risky credit history. I also don’t agree with the Governors’s blanket statement: that financial “information… is not an indicator of a person’s character or ability to do a job well”.  Answer me this: why do we continue to perpetuate the lies that an employee’s health and financial condition have nothing to do with job performance and productivity???

While a similar law has not been passed by Congress, the EEOC isn’t waiting any longer.  As evidenced by a recent EEOC press release; they are finally getting around to doing something about this agenda of theirs. Here’s the release in full:

PRESS RELEASE
12-21-10

EEOC Files Nationwide Hiring Discrimination Lawsuit Against Kaplan Higher Education Corp.

Company’s Use of Job Applicants’ Credit History Discriminates Because of Race, Federal Agency Charges

CLEVELAND – Kaplan Higher Education Corporation, a nationwide provider of postsecondary education, engaged in a pattern or practice of unlawful discrimination by refusing to hire a class of black job applicants nationwide, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.

Since at least 2008, Kaplan Higher Education has rejected job applicants based on their credit history. This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity, the EEOC charged in its lawsuit.

As a result of these practices, the company has violated Title VII of the Civil Rights Act of 1964, according to the lawsuit (Civil Action No. 1:10-cv-02882) filed by the EEOC’s Cleveland Field Office in U.S. District Court for the Northern District of Ohio. It is a violation of Title VII to use hiring practices that have a discriminatory impact because of race and that are not job-related and justified by business necessity.

The EEOC attempted to reach a voluntary settlement before filing suit. The EEOC seeks injunctive relief in its lawsuit, as well as lost wages and benefits and offers of employment for people who were not hired because of Kaplan Higher Education’s use of job applicants’ credit history.

“Title VII of the Civil Rights Act of 1964 was intended to eliminate practices that serve as arbitrary barriers to employment because of a job applicant’s race,” said Regional Attorney Debra Lawrence of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Delaware, West Virginia, Maryland, and portions of New Jersey and Ohio. “Employers need to be mindful that any hiring practice be job-related and not screen out groups of people, even if it does so unintentionally.”

Workplace discrimination charge filings with the federal agency nationwide rose to an unprecedented level of 99,922 during fiscal year 2010.

The EEOC’s justification for filing this claim is a simple one, and not the one used in IL to pass the statute (because Congress didn’t go there yet). Because credit scores are worse for Blacks and Hispanics, you have to hire folks with poor credit unless you have a business justification for not doing so. Arguably, if you don’t hire a White or Asian with a poor score that’s OK. Of course it would be easy with a bank employee, cashier or CFO to make the business justification argument. Not so easy for the rank and file. What’s the specific necessity for doing it with a warehouseman? Is his easy access to inventory enough of a theft risk to consider? What about the clerk at a law firm with access to confidential client information? Is her ability to cause identity theft problems enough?  What about the maid at a hotel, or the person that shampoos your carpets when you are not home? In this case Kaplan is a school so my guess is the scores were run on teachers and staff.

The basic argument for employers using credit checks is never acknowledged by the politicians and seems to escape notice at the EEOC too. Mainly, employees with poor credit are a greater risk! For just about everything! And I don’t need some logarithmic study to convince me of that fact. 30 years of dealing with workplace drama is enough. Let me ask you a simple question: Who is more likely to engage in theft, absenteeism, waste time online or on the phone, turnover, lower productivity, claims, etc.? Somebody with a decent credit history, or someone with a poor one? I think the answer is a common sense one. If all else was equal, who would you rather hire? Somebody with a good credit history or just the opposite? See, the EEOC wants you to have some documented study done as common sense isn’t their game! Say you have 15 employees. One bad hire can sink your business in no time. You are struggling to survive…and now you are being told you have to run some business justification study somehow if you don’t want to hire financial screw ups? They can’t get another new car or buy a house they can’t afford or get another credit card…but hey, they can work for you!?

It’s too bad they aren’t being honest about the agenda. This is not about common sense; it’s about the distribution of power. Since the gaps in the distribution of wealth are not to their liking, we’ll thrust the burden on to employers, who have little influence politically. Fact is, money and credit reports are color blind. In this economy there have also been reckless Whites and Asians when it comes to managing money, and they need jobs too. This is simply affirmative action in disguise…a back door way of getting at it. And it is wrong.

Before anyone gets to huffy about any perceived lack of caring on my part let me remind you of this: 1) I represented employees for 17 years. In the end, I quit litigation because I realized the pure nonsense it’s become. It doesn’t help employer or employees very much. It does, however, do a great job of helping lawyers and regulators–who add zilch to the economy. 2) I went bankrupt over a dozen years ago because of my tomfoolery with money. I was to blame. Nobody else. I took responsibility for it, took my licks…and made sure I did what I needed to so that I never went there again! 3) The EEOC is not going to insure employers against hiring the wrong employee. When that person with the low credit score rips off you or your clients out of their desperation, that’s your problem, not the EEOC’s. 4) I, and most employers, get that some folks have financial problems due to poor health, broken marriages or loss of long term employment. But now the inquiry into “why” somebody is a financial mess is meaningless.

Most business owners and business managers I know are tired of supporting anyone’s irresponsibility. Including whether it surrounds how they manage their health or bank account. Time for the EEOC to wake up to that fact that the “Silent Majority” pays their bills on time, doesn’t buy more than they can afford, and is tired, sick and tired, of taking on others’ irresponsibility.

Years ago one of my favorite cartoonists, Matt Groening (The Simpsons creator), ran a hilarious cartoon series called Life in Hell. His cartoon book Work is Hell is a classic!

Here’s my Andy Warhol job on of one of Matt’s cartoons:

In light of the recent snowstorms in the east and in anticipation of more winter storms, OSHA wants to remind workers, employers and the general public of the hazards associated with snow removal and recovery work. Common hazards can include: electric shock from contact with downed power lines or the use of ungrounded electrical equipment; falls from snow removal on roofs, or while working in aerial lifts or on ladders; being struck or crushed by trees, branches or structures that collapse under the weight of accumulated snow; carbon monoxide poisoning from gasoline-powered generators in inadequately ventilated areas or idling vehicles; and lacerations or amputations from unguarded or improperly operated chain saws and power tools or improperly attempting to clear jams in snow blowers. Information on hazards and safeguards associated with cleanup and recovery activities after a storm or other major weather events are available on OSHA’s website in English and Spanish.

Click here to learn more about Hazards and Safeguards. Click here to read the News Release.

SEATTLE — United Airlines has agreed to settle a federal lawsuit alleging that the company violated the Americans With Disabilities Act (ADA) when it refused to allow employees with disabilities to work reduced hourly schedules as a reasonable accommodation, the U.S. Equal Employment Opportunity Commission (EEOC) announced today.

In addition to paying $600,000 to a group of reservation agents with disabilities, United will end its blanket policy against reduced hourly schedules and provide training to staffers who administer United’s reasonable accommodation process, according to the terms of a three-year consent decree approved by the court (EEOC v. United Airlines, C-06-01407 TSZ).

Prior to 2003, United had permitted reservations sales and service representatives to work reduced hourly schedules as an accommodation for employees’ various disabilities, including multiple sclerosis, DeQuervain’s tendonitis and carpal tunnel, and myasthenia gravis (a muscle condition). By suddenly abolishing its long-standing practice and policy of providing reduced hourly schedules, United required all reservation sales and service representatives who could not work their full bid schedules to either retire or go out on extended leave, and then terminated them when their leave ran out. These policies and practices violate the ADA, the EEOC said.

One worker who had worked for United for 25 years and had worked a reduced-hour schedule for 23 years prior to the policy change, said, “Contributing 25 years of work, in a way compatible with my health, was positive for me, for United and for society.  A sweeping policy that disregards individual circumstances doesn’t give someone like me a chance to do my job.  I took my case to the EEOC, and I’m glad to know that United is going to stop its blanket policy on work hours.”

The ADA protects individuals with disabilities from employment discrimination and requires employers to make reasonable accommodations to employees and applicants with disabilities, unless the accommodation would create an undue hardship. After a neutral investigation conducted by the EEOC’s Honolulu and Seattle offices and after first attempting to reach a voluntary settlement through conciliation, the EEOC filed the lawsuit in U.S. District Court for the Western District of Washington.

EEOC San Francisco Regional Attorney William R. Tamayo said, “United conceived of this policy as a cost-cutting measure — a means of tightening the belt. However, this action did not lessen any monetary strain for the company or boost the department’s performance. Thinking creatively and flexibly to retain skilled and experienced workers would be a better survival strategy for companies than stereotyping workers with disabilities as expensive and expendable.”

EEOC San Francisco District Director Michael Baldonado noted, “Decisions regarding reasonable accommodations for a disability must be made on a case-by-case basis. A blanket policy that takes options off the table by setting minimum work hours not only violates the ADA, but it also may have a negative impact on the company’s morale, productivity and bottom line.”

You can read the press release at www.eeoc.gov/eeoc/newsroom/release/12-21-10.cfm.

CEMEX Inc. in Houston will pay $1,514,449 in overtime back wages to 1,705 ready-mix drivers after an investigation by the department’s Wage and Hour Division found violations of the Fair Labor Standards Act. Employees in Arizona, California, Florida, Georgia, New Mexico, North Carolina, South Carolina and Texas failed to receive premium pay for hours worked more than 40 in a workweek. CEMEX, the largest supplier of cement and ready-mix concrete in the country, is also required to comply with the requirements of the FLSA in the future or risk being found in contempt of the order.

Click here to read the News Release.

For 2011, the CalOSHA “Safety and Health Protection on the Job” poster has updated contact information. Moreover, the California Disability Insurance pamphlet and the California Unemployment Insurance pamphlet have been changed. You can download them at http://www.edd.ca.gov/Payroll_Taxes/Required_Notices_and_Pamphlets.htm. The state disability insurance pamphlet must be given to all new hires and to all employees who take a leave of absence for pregnancy disability or any non-occupational illness or injury. The unemployment insurance pamphlet must be given to employees who are discharged or who quit.

Additional posting information is available at http://www.taxes.ca.gov/Payroll_Tax/postingreqbus.shtml and at http://www.dir.ca.gov/wpnodb.html

“Be always at war with your vices, at peace with your neighbors, and let each new year find you a better man.” – Benjamin Franklin

This issue discusses:

• Editor’s Column: Big Time Liability for Small Company Harassers
• How Well is HR Doing?
• Three’s a Crowd, or Don’t Overload the Brain
• How Does Your State OSHA Plan Rate?
• Busted!
• Sexual Harassment and Young Workers
• Work is Hell
• Beware of FLSA Violations!
• Designing Your Office Environment
• OSHA Targets “Texting While Driving” on Company Business
• Future Risks
• Would You Be Prepared for an EEO Audit?
• Discrimination Claims Keep Coming
• Getting the Accommodation Right
• The Broad Scope of Retaliation
• Accommodation Ideas: Common Sense, Low Cost common Sense, Low Cost
• Career Ladders
• Tips on Communicating with Coworkers about Disability and Accommodations

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Big Time Liability for Small Company Harassers

In a case brought by the EEOC against the Fairbrook Medical Clinic, the plaintiff, Dr. Deborah Waechter, alleged four years of harassment by the sole owner of the family medical center in Hickory, NC. Apparently, the owner created a hostile work environment by routinely making vulgar and sexually explicit comments, repeatedly showing an X-ray of his torso; discussing his sex life, and telling Dr. Waechter’s patients that they could follow up with her when she “return[ed] from screwing.” There were also stupid comments about her breasts, and other rude behavior.

Interestingly, the company tried to defend itself by claiming that because the doctor was a jerk of a boss to all of his employees he didn’t discriminate against any of them.

However, most courts don’t buy this argument, especially if it involves gender-specific comments. The court held that even though the defendant was the plaintiff’s immediate supervisor and sole owner of the clinic, the HR manager and the office manager should have investigated the alleged misconduct. (In the real world, how can you punish your boss?)

My two cents: It’s important for business owners to understand that no matter the size of their company, they can face discrimination and sexual harassment claims at any time. Protect your business against any possible claim by making sure that you have EPL insurance.

On the other hand, I wonder why this professional woman continued to work in an environment where she was not treated properly for four years. The last time I looked, it was called work, not jail. Did she attempt to send out her resume during this time? Was she afraid that her skill set wasn’t good enough to get a job elsewhere? There’s a responsibility on her part, too.

A man once told me that his boss discriminated racially against him for three years. When I asked if he ever took his resume for a spin, he told me he had not. When I asked why he put up with the discriminatory conduct for as long as he did, he stated that “I didn’t want to leave the company because I loved playing on their softball team.” That’s how ridiculous some of these stories can get.

Click here to read the case.

How Well is HR Doing?

Measuring HR success isn’t easy. You can and should run your HR figures on the HR That Works Cost Calculator, a tool that will probably show the variance in your HR practices to be at least 10% of payroll. So, if you have $1 million in payroll, the variance will be at least $100,000. That’s one way of looking at HR dollars. Another approach is to determine “HR costs per employee.” These costs might include compensation, benefits, recruitment costs, outsourcing costs, as well as office space and equipment. Many companies will look at revenue per employee. Although this is certainly important, it also includes many variables that have nothing to do with HR effectiveness. For example, in a poor economy, revenue per employee will initially go down and then after cost-cutting, layoffs, etc., might well rise past previous levels. Consider what happened during the recent recession. Ultimately, the question remains, what information are you seeking and what will you to do with it? HR That Works members should review the Benchmarking Worksheet to generate some ideas.

Three’s a Crowd, or Don’t Overload the Brain

An article in the September/October 2010 Scientific American Mind discussed research that explains why multitasking doesn’t work. When test subjects had to deal with two activities, the brain divided the work between each hemisphere. The study explained this is precisely why people are notoriously poor at doing three or more things at a time. “After two tasks, we run out of hemispheres.”

How Does Your State OSHA Plan Rate?

OSHA conducts an annual evaluation of the 27 approved State Plan States each fiscal year. See how your state stacks up here.

Busted!

A survey by Men’s Health magazine, asked 20 corporate bosses (including the likes of Mark Cuban, owner of the Dallas Mavericks) to rank which employee time-wasters upset them the most. Number one was “clicking out of a screen just as I walk by” (71.6%). When an employee did this to me, I chose not to confront him because I wanted to trust him. Stooopid! Turns out he was running his own business on my dime and failed to deposit required tax payments, which was part of his job. I should have addressed his actions immediately and placed monitoring software on his computer. Keeping employees honest is even harder when they’re on their iPhone or other smart-phone, rather than your computer. How can you monitor this? In fact, controlling today’s worker is a struggle you can’t and don’t want to “win.” The only alternative is to invite them into the conversation, set reasonable expectations, and create a culture of excellence in which employees police each other. Also, make sure that a third party is double-checking your books!

Sexual Harassment and Young Workers

We’re seeing more teenagers than ever reporting sexual harassment cases. In New York State, a telemarketing company had to pay more than $500,000 in damages and interest to satisfy a claim brought by 13 women, most of whom were teenagers. The managers made numerous sexual jokes and remarks and, on occasion, promised a raise in return for sexual acts.

Because the company was an “affiliate franchise,” the franchisor argued that the affiliate was not part of the company. The Second U.S. Court of Appeals rejected this argument and affirmed the jury verdict, including an award of punitive damages.

Lesson to learn: Have managers and employees trained in sexual harassment issues and make sure they know where and how to complain. You might go one step further and distribute the Employee Compliance Survey.

What’s more, franchisors that traditionally have stayed away from employee relations to avoid “co-employment” liability will have to offer their franchisees HR training. This is both a legal and a competitive issue.

Work is Hell

I’ve noticed a rash of victimization hitting center stage. Business Week recently ran a long article about workplace bullying. The Obama administration has become adept at finding workplace victims like never before. How is a business owner or manager supposed to deal with all of this? Don’t let employees play victim on you! Challenge them to participate and come up with solutions to known problems. Allow them to become directly responsible for what they can control. It’s hard to cause problems when you’re responsible for making things happen. Nobody has time for emotional nonsense at great companies.

Beware of FLSA Violations!

Have you audited your practices for these common wage and hour exposures?

1. Exempt vs. non-exempt. Have you classified your exempt employees properly or are you risking an overtime exposure?
2. Rest and meal period violations. Is the employee truly relieved from work and are your time-keeping clocks tracking meals accurately?
3. Travel time. Many workers who start from their home and then go to multiple locations fall under “portal-to-portal laws.”
4. 1099 misclassification. As indicated on the blog site, www.1099timebomb.com, this is a significant exposure. The IRS and state agencies are looking to find as many people as they can who are classified as employees.
5. Failure to pay prevailing wage. If you’re working a government or quasi-government project, make sure you’re complying with all wage requirements.

Designing Your Office Environment

An article in the September/October 2010 Scientific American Mind discussed why some office spaces alienate office workers, while others make them happier and more efficient.

The bottom line: Let your employees have input in “decorating” their environment. According to survey responses, giving workers a say in the physical aspects of their workspace reduced the negative effects of noise and distractions. The article also warned employers that efforts at making “hangout rooms,” etc. will fail if you don’t include employees in designing these environments.

OSHA Targets “Texting While Driving” on Company Business

A recent OSHA press release advised companies that an employer who requires employees to text while driving or organizes work so that “texting is a practical necessity” are violating the Occupational Safety and Health Act. In its news release, OSHA further states that it will investigate complaints about these practices promptly and if it concludes that an employer has compelled employees to text while driving, issue citations and penalties to end the practice. OSHA explains that employers have the “responsibility and legal obligation to create and maintain a safe and healthful workplace” – and this includes having a clear, unequivocal, and enforced policy against the hazard of texting while driving. Companies are violating the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, create incentives that encourage or condone this, or they structure work so that texting is a practical necessity for workers to carry out their job. Employers who have not already done so should set a policy on the use of electronic devices while driving and make sure employees understand that texting while driving is prohibited.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

Future Risks

In a Business Week interview, Vinay Mistry of AON stated that the company’s management team covers more than 370 risks, from nanotechnology through climate change. They have designed and implemented realistic disaster scenarios for the top 20 exposures, from hurricanes to plane crashes and earthquakes.

The emerging risk areas discussed included synthetic biology, digital risk and cybercrime, “space risk,” which is based on the impact the solar cycle has on satellites, as well as the impact of climate change.
What can we learn from this? First, identify the dozens of risk exposures that apply to your company. Work with your insurance broker and legal counsel to make sure you do this the right way. Then focus on the most likely scenarios and have a plan for preventing and dealing with each of them. The risk exposures your company faces are both insurable and non-insurable and include, but are not limited to:

• IT systems and their ability to handle hurricanes, power outages, hacking attempts, etc.
• Employment Practice Liability exposures
• Errors and omissions exposures
• Health and safety exposures
• Work Comp exposures
• Product Liability
• Environmental liabilities
• Rapid loss of clientele
• Poor vendor or supplier relations
• Economic pressures, including diminished markets
• Exposure to competition, including offshore activity
• Financial exposures lacking proper checks and balances
• Lack of available capital
• Cyber-liability and social media exposures
• Turnover and morale problems

This is, of course, a short list that applies to most companies. If you’re an HR That Works member, take comfort in knowing that we can help you with your HR risks!

Would You Be Prepared for an EEO Audit?

Click here to see a typical request from an EEOC office when investigating a claim of discrimination. To what degree would you be able to comply with, or fear such a request? Just looking at the amount of information requested can make your head spin.

P.S. If you ever get such a request, contact your employment law attorney and insurance company immediately!

Discrimination Claims Keep Coming

An EEOC press release has announced an increase in discrimination claims in FY 2010. This comes as no surprise, given record unemployment rates, and the fact the commission invites more claims than ever and has expanded its jurisdiction. Here’s the point: Be prepared! Have the right policies and procedures, basic training for managers and rank and file, Employment Practices Liability Insurance (ask your broker about EPLI), and legal support when you need it. The HR That Works program provides all of these tools.

Getting the Accommodation Right

Dept. Fair Empl. & Hous. v. Avis Budget Group (Reed)

Complainant Eleanor Reed was a customer service representative for Avis Budget Group (Avis) at its San Francisco Airport location. In June 2006, she requested a reasonable accommodation of a six-hour shift for her mental disability (post-traumatic stress disorder). She previously had been granted the accommodation without any problems, and had succeeded in performing her essential functions with the accommodation. Avis decided to place her on unpaid leave and thereafter requested medical documentation. Reed provided the documentation requested, including the diagnosis, the reasons for the accommodation, and why it would allow her to perform the essential functions of the job. However, she refused to agree to a blanket release of her medical records, including several years of psychiatric records that detailed decades of sexual and other physical and mental domestic abuse, or to provide unfettered access to her treating psychiatrist.

Avis decided that the doctor’s documentation was inadequate, and requested that she provide the full medical records release and access to her doctor or submit to the company’s physician for evaluation. Avis did not engage with Reed about the purported inadequacies or give her an opportunity to augment the doctor’s information to support the request for accommodation. Approximately five months after placing Reed on unpaid leave, Avis finally obtained an independent medical opinion that agreed with the opinion of her doctor. Even though it provided no further information as to the reason for the accommodation, Avis finally accepted the opinion and agreed to grant an accommodation. However, it looked at its “seasonal” need and placed Reed on a severely reduced work schedule that removed her from eligibility to bump another employee with less seniority when Avis laid off four employees, including Reed, the following month.

The Fair Employment and Housing Commission ruled in favor of the Department and against Avis for unlawful inquiries about the employee’s disabilities, failure to engage in the interactive process, denial of reasonable accommodation, and failure to take all reasonable steps necessary to prevent discrimination. The Commission ordered an award of $89,863.70 ($14,863.70 in back pay and $50,000 in emotional distress damages to Reed; and $25,000 in an administrative fine to the General Fund), plus affirmative relief of postings and training for management personnel on reasonable accommodation.
Lessons to learn:

1. Limit the medical information you request or receive to that which relates directly to the accommodation issue. Asking for anything more only invites problems.
2. Never, ever, give up on the accommodation dialogue. Whoever quits first loses.
3. Make sure not to “penalize” someone who has requested an accommodation.
4. Realize that there is often “something else” going on with a person that’s none of your business! Focus on their productivity and disability, not the cause of their disability.

Click here to read the case.

The Broad Scope of Retaliation

In Smith v. Hy-Vee, Inc., Drew Smith brought sexual harassment and retaliation claims due to conduct caused by Sheri Lynch, a tech cake decorator, who engaged in rude, vulgar, and sexually charged behavior toward Smith, and apparently all the other employees. The court stated that since Lynch did not seem to be “sexually motivated” toward Smith or any of the other employees, but simply out of control with all of them, there was no sexual harassment. (Many courts or juries will conclude otherwise – see the “Editor’s Column” in this newsletter.) The issue in the case, however, was whether or not Smith had a reasonable belief that it was against the law and if the company retaliated against her because of her complaints. The court ruled that because she had to show the “good faith” nature of her belief, the facts from the underlying claim would be admissible at the retaliation trial. (What lawyers call having to “try a case within the case.”)

This case carries two lessons for employers:

1. If the crazy facts in this case are even slightly true, how did an employee like Sheri Lynch stay employed at Hy-Vee? Smith stated she reported incidents of harassment to at least 12 different managers and co-workers, making 66 to 101 complaints to management. Interestingly, Hy-Vee denies Smith ever complained. The company claimed that there were a number of incidents in which Smith herself did not act appropriately or questioned the authority of supervisors. She was also written up for making mistakes in cake and bagel orders during her final weeks of employment.
2. Although rude, vulgar, and obnoxious bosses might not end up generating a harassment or discrimination claim, they easily can trigger a legitimate retaliation case and expensive litigation. (Think about it — thousands of dollars in lawyers’ fees over cakes and bagels.) Remember that when employees bring these underlying complaints, they don’t have to use magic words like “harassment,” “discrimination,” or “retaliation” in order to trigger protection.

Accommodation Ideas: Common Sense, Low Cost

Here’s a list of inexpensive accommodation examples published by the Job Accommodation Network (JAN):

Situation: A production worker with mental retardation, who has limited fine motor dexterity, must use tweezers and a magnifying glass to perform the job. The worker had difficulty holding the tweezers.
Solution: Purchase giant tweezers. Cost: $5.

Situation: A teacher with bipolar disorder, who works in a home-based instruction program, experienced reduced concentration, short-term memory loss, and task sequencing problems.
Solution: At one of their weekly meetings, the employee and the supervisor jointly developed a checklist that showed activities for both the week’s work and the following. The company adapted forms so that they would be easy to complete, and developed structured steps so that paper work could be completed at the end of each teaching session. An unintended bonus to the company was the value of the weekly check-off forms in training new staff. Cost: $0.

Situation: A garage mechanic with epilepsy was unable to drive vehicles.
Solution: The employer negotiated with the employee’s union and reached an agreement that any qualified employee, regardless of job held, could drive the vehicles to the mechanic’s work station. Cost: $0.

Situation: An individual with a neck injury, who worked in a lab, had difficulty bending his neck to use the microscope.
Solution: Attach a periscope to the microscope. Cost: $2,400.

Situation: A catalog salesperson with a spinal cord injury had problems using the catalog, due to difficulty with finger dexterity.
Solution: The employer purchased a motorized catalog rack, controlled by a single switch via the mouth stick, and provided an angled computer keyboard stand for better accessibility. Cost: $1,500.

Situation: A field geologist who was deaf and worked alone in remote areas was unable to use two-way radio communication to report his findings.
Solution: The company installed text telephone technology which allowed the geologist to communicate using a cellular telephone. Cost: $400 plus monthly service fee for the phone.

Situation: A saw operator with a learning disability had difficulty measuring to the fraction of an inch.
Solution: The company gave the employee a wallet-sized card that listed the fractions on an enlarged picture of an inch. This allowed the employee to compare the card with the location on the ruler to identify the correct fraction. Cost: $5.

Situation: An accountant with HIV was experiencing sensitivity to fluorescent light, which kept her from seeing her computer screen or written materials clearly.
Solution: The employer lowered the wattage in overhead lights, provided task lighting and a computer screen glare guard. Cost: $80.

Situation: A custodian with poor vision was having difficulty seeing the carpeted area he was vacuuming.
Solution: The company mounted a fluorescent lighting system on his industrial vacuum cleaner. Cost: $240

Here’s the point: Accommodations don’t have to be expensive. Remember to engage in a true dialogue involving the employee, his or her physician, and any support you might need from the HR That Works hotline, Job Accommodation Network, or your own attorney.

Career Ladders

According to a nationwide Gallup survey on the reasons for turnover, the second-leading reason for losing employees was lack of a career path (i.e., I’m OK today, but where’s my future in this job?). The DOL has done an excellent job of creating a tool that can create competency models for different careers, as well as supporting career ladders or lattices. You can use these resources (click here) for recruitment and hiring purposes as well as career planning. We also provide a number of career ladders created by the South Florida Manufacturers Association, which you can use as templates for any job. You’ll find them at the end of the hiring forms in HR That Works.

Tips on Communicating with Coworkers about Disability and Accommodations

The Americans with Disabilities Act (ADA) prohibits employers from telling coworkers anything about an employee’s disability, including the fact that an employee is receiving an accommodation. However, in some cases, the employee might want to educate coworkers voluntarily about the disability and accommodation, especially if their coworkers are going to notice the accommodation anyway. For example, if an employee with a disability is using a service dog at work, it might be useful to educate coworkers about service dogs. Or, suppose an employee has severe allergies and needs to avoid inadvertent exposure at work. Here are some general guidelines for employees with disabilities communicating information about their disability and accommodation to their fellow workers:

• Keep the conversation work related.
• Let coworkers know why you’re telling them about your disability.
• Don’t assume that they know anything about your disability; be prepared to provide general information if relevant.
• Let coworkers know what you need from them and why you need it.
• Explain to them what accommodations you’ll need and how they will help you perform your job.
• Be positive and open, but limit the information you provide to the amount that you’re comfortable sharing.

- Linda Carter Batiste, J.D., Principal Consultant, Job Accommodation Network (JAN)

Form of the Month

ADA Compliance Flowchart (PDF) – This tool helps identify the step-by-step process to follow when managing an ADA accommodation.

Podcast

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