Return to Work (RTW) and Stay at Work (SAW) programs are part of a business’ strategy to retain valued employees and to enhance the productivity of its workforce. “The goal of a return-to-work program, sometimes called a transitional duty program, is to make job changes or provide job accommodations that return individuals to work who are absent for workers’ compensation or disability-related reasons.”[1]

As with workplace accommodation programs, a RTW program should have clear written policies articulating each party’s responsibilities. Accurate job descriptions including the physical demands of particular essential functions should also be developed. This helps everyone in the process (e.g., doctors, rehabilitation staff, and accommodation specialists) understand the job requirements. A good understanding of the job demands and the employee’s limitations and abilities is the starting point for determining if effective job accommodations will enable the employee to return to or stay at work while still recovering from injury. Effective job accommodations insure that the employee returns to work as soon as possible without risk to the employee or employer.

Of the employers who called JAN for technical assistance, most (82%) were doing so to retain a current employee.[2] Thus, most of JAN’s publications contain accommodation solutions that could be generalized to a RTW or SAW situation. JAN also offers a number of examples specific to RTW.

For instance:

Situation – A warehouse employee was transitioning back to work with lifting restrictions after being injured by falling boxes of product.

Accommodation Solutions:

• Provide overhead structure for lifting devices;
• Place frequently used tools and supplies at or near waist height;
• Provide low task chairs, stand/lean stools, and anti-fatigue mats;
• Provide compact lifting devices to push and pull supplies and tools from storage;
• Make wheelchairs, scooters, industrial tricycles, or golf carts available; and
• Provide aerial lifts, rolling safety ladders, and work platforms.

The full publication, Fact Sheet Series: Job Accommodations for Return to Work is available for download. If you need additional guidance in identifying a device, or need information on where to buy the device, please call one of JAN’s Consultants.

Below are resources to learn more about developing your company’s RTW or SAW program:

• U.S. Department of Labor’s Office of Disability Employment Policy Return to Work Toolkit
• Disability Management Employer Coalition (DMEC)
• Return to Work Matters
• Society for Human Resource Management (SHRM) Disability Employment Resource Page (available to nonmembers and members alike)

- Louis E. Orslene, MPIA, MSW, Co-Director

 - Return to Work: A Snapshot (Part 2 of a Continuing Series, Read Part 1)

As more than 80% of inquiries to JAN involve retention of a current employee, the importance of contributing technical assistance to stay at work and return to work programs is vital. Both practices ensure valued employees are retained, productivity is maintained, and recruiting and on-boarding costs are saved. This is the second article in a series about these important practices in the workplace. The following article results from a collaboration between JAN and Return to Work Matters (RTW Matters). RTW Matters is a practical online resource for employers and disability professionals. Look for the Join Now link on the left hand side of the RTW Matters homepage.

He Ain’t Heavy…He’s My Employee

In the spring of the year in 2008, on a cold and dreary day, a freezing rain fell to coat everything it touched. Dan had just parked the CDL class truck and was stepping down to move on to his next task. What Dan didn’t know was that the next task would be a trip to the emergency room. When exiting the truck, Dan fell down and landed on his knee, causing a tear that eventually lead to a surgical repair. Two months later, Dan was told he could go back to work, but would have some temporary restrictions. Although his employer didn’t have anything he could do within his physical capacity, they would try and “come up with something.” For the next seven months, Dan remained at home and collected compensation pay at two-thirds his salary.

Although he made use of the time by attending physical therapy and follow-up doctor appointments, Dan was getting bored and a little worried about whether he would ever return to his job. Dan missed the gang at work and would frequently stop by for a chat and any news on possible light duty assignments. Finally, an opportunity came up for Dan to return to work, and even though it was limited to four hours a day of snow plowing, he happily accepted. Eventually, Dan was released to full duty and returned to his heavy equipment mechanic position, but to everyone’s dismay, Dan’s knee started to give him problems within just a few weeks. When the MRI showed another tear, a second surgical repair was performed and once again, Dan was out of a job.

In desperation, Dan scheduled an appointment to talk with the company’s return to work coordinator, who immediately contacted the ergonomic specialist to schedule a meeting for the two of them to meet with Dan and his supervisor to form a return to work strategy. A job analysis was completed, which determined that the physical ability to kneel and squat were essential to performing the heavy equipment job. Unfortunately, these were the very same physical demands that Dan was restricted from doing on what was now a permanent basis. This could have been the end of the story except that the people involved were a bunch of very determined and creative folks.

An ergonomic evaluation of the work area was completed and another meeting was held to discuss a plan. The only thing keeping Dan from returning to his job was his inability to maneuver and work on the equipment. So, was there another way of maneuvering? Well, research would need to be done and budgets would need to be considered. Dan was told that they would let him know when they had some answers. During what Dan would say were some of the longest days of his life, he stayed home, earned less money and worried about his future.

Then came the day when Dan got the call, asking for him to come in to work for a meeting. The news was good. A hydraulic lift had been indentified that could be used to lift the work product to waist height. This allowed Dan to avoid the kneeling, squatting, and heavy lifting he was restricted from doing, while still allowing him to perform all the duties of his heavy equipment mechanic job. This job modification not only returned Dan to his full time job, it came with an additional benefit; the ability for other workers to use the lift, thereby preventing additional work injuries.

From the efforts of Dan and his supervisor, the ergonomic specialist and return to work coordinator, long term disability was prevented. This not only saved the employer money and a loss of production time by bringing on a new employee, it made them feel good that they had a part in doing the right thing by a valued employee. The other employees recognized the efforts of their employer, which instilled confidence that if they ever met with similar circumstances, they would be taken care of. For Dan, the benefits were huge. He could now go back to being a productive member of society and earn the money he was previously earning. For the community, the benefits were limitless: the return of a member to gainful employment and the prevention of unemployment side effects such as anxiety and depression, that affect the individual and family members. This case had many factors that led to its success, but most important was the great team collaboration, established partnerships, and good communication between the employee, supervisor, RTW coordinator, and all the other team players involved in the case.

The cost of the hydraulic lift? $2,667. The return of a valued employee? Priceless.

For more on lifting devices, the costs and benefits of job accommodation, and effective accommodation practices, contact JAN.

- Article by: Mary Harris & Shelly Frohrip, Contributors, Return to Work Matters.

I am in, speak to, and also run Mastermind Groups and can personally attest to their power. When I was starting out my business more than a dozen years ago and didn’t have the money I do today, I did what Napoleon Hill suggested that you do in Think and Grow Rich–create your own fictional group (his “Invisible Counselors”). If you haven’t read that book a few times by now, go out and buy it today. Hill’s own personal group had people like Carnegie, Rockefeller, and Lincoln in it. I had folks like Hill, Deming, Drucker, Godin and Bucky Fuller in mine. If I was a marketing guy or gal I might have people like Barnum, Ogilvy, Reis and Trout, Abraham, Levinson, Walker and Kern in mine. Here’s Hill talking on it.

If you want a copy of my Visionaries Workbook, simply email me at don@hrthatworks.com.

Bottom line: Get into a Mastermind Group whether in person or in your mind!

In this California case “consulting service managers” who were primarily engaged in selling recruitment services for Surrex, filed claims for overtime and missed meal periods. The court dismissed their case claiming the fit under the Sales exemption The most important language in the case is as follows:

“We conclude Labor Code section 204.1 sets up two requirements, both of which must be met before a compensation scheme is deemed to constitute ‘commission wages.’ First, the employees must be involved principally in selling a product or service, not making the product or rendering the service. Second, the amount of their compensation must be a percent of the price of the product or service.”  http://www.courtinfo.ca.gov/opinions/documents/D057955.PDF

Note in the CarMax case the court ruled a flat fee commission satisfies the requirement.

The Federal standard for sales exemptions can be found here. There are exemptions for auto sales, retail sales and outside sales. Here’s an advisor on the Outside Sales

Outside Sales Employee section
This section helps you in determining whether a particular employee who is an outside sales person meets the tests for exemption from the minimum wage and overtime pay requirements of the FLSA.
- Review the Fact Sheet
- Start Outside Sales Employee section

There is a great resource for anyone interested in knowing more about the health care insurance challenge. The Health Policy Center of the Urban Institute is a non-partisan thinktank with great information. Start at http://www.urban.org/health_policy/

For example, their excellent article on Why Employers Will Continue to Offer Health Care, which can be found at the link above, forecasts that the Affordable Care Act (ACA) will leave employer-sponsored coverage largely intact; in contrast, some economists and benefit consultants argue that the ACA encourages employers to drop coverage thereby making both their workers and their firms better off (a “win–win” situation). This brief’s analysis shows that no such “win–win” situation exists and that employer-sponsored insurance will remain most workers’ primary source of coverage. Analysis of three issues-the terms of the ACA, worker characteristics, and the fundamental economics of competitive markets-supports their conclusion.

As further evidence of the attack on 1099 labor, the DOL issued the following press releaseon Feb. 9^th:

WASHINGTON — Nancy J. Leppink, deputy administrator of the U.S. Department of Labor’s Wage and Hour Division, and California Secretary of Labor Marty Morgenstern have entered into a memorandum of understanding regarding the improper classification of employees as independent contractors. Leppink and California Labor Commissioner Julie A. Su hosted a press teleconference Feb. 9 during which they discussed how the U.S. Department of Labor and the state of California will embark on new efforts, guided by this memorandum, to protect the rights of employees and level the playing field for responsible employers by reducing the practice conducted by some businesses of misclassifying employees. This partnership is the 12th of its kind for the U.S. Department of Labor.

“This memorandum of understanding helps us send a message: We are standing together with the state of California to end the practice of misclassifying employees,” said Leppink. “This is an important step toward making sure that the American dream is still available for workers and responsible employers alike.”

“California is proud to enter into this partnership with the U.S. Department of Labor to work together to attack the problems of the underground economy,” said Su. “Gov. Brown just signed an important law that went into effect on Jan. 1, increasing penalties for willful misclassification. With the Labor Department, we are poised to use all the tools in our arsenal to lift the floor for hardworking employers and employees throughout the state.”

Employee misclassification is a growing problem. In 2011, the Wage and Hour Division collected more than $5 million in back wages for minimum wage and overtime violations under the Fair Labor Standards Act that resulted from employees being misclassified as independent contractors or otherwise not treated as employees.

Business models that attempt to change, obscure or eliminate the employment relationship are not inherently illegal, unless they are used to evade compliance with the law. The misclassification of employees as something else, such as independent contractors, presents a serious problem, as these employees often are denied access to critical benefits and protections — such as family and medical leave, overtime compensation, minimum wage pay and Unemployment Insurance — to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often struggle to compete with those who are skirting the law. Employee misclassification also generates substantial losses for state Unemployment Insurance and workers’ compensation funds.

Memorandums of understanding with state government agencies arose as part of the U.S. Department of Labor’s Misclassification Initiative, which was launched under the auspices of Vice President Biden’s Middle Class Task Force with the goal of preventing, detecting and remedying employee misclassification. Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington have signed similar agreements. More information is available on the U.S. Department of Labor’s misclassification Web page at http://www.dol.gov/misclassification/.

In a case brought by a Minster/teacher against a church, the Court made it very clear that “The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful is the church’s alone.”

Here’s the Court’s summary of the case:

1. The Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimi­nation laws. Pp. 6–15.

(a) The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. By forbidding the “establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses ensured that the new Federal Government—unlike the Eng­lish Crown—would have no role in filling ecclesiastical offices. Pp. 6–10.

 (b) This Court first considered the issue of government interfer­ence with a church’s ability to select its own ministers in the context of disputes over church property. This Court’s decisions in that area confirm that it is impermissible for the government to contradict a church’s determination of who can act as its ministers. See Watson v. Jones, 13 Wall. 679; Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94; Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U. S. 696. Pp. 10–12.

(c) Since the passage of Title VII of the Civil Rights Act of 1964 and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a “ministerial exception,” grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship be­tween a religious institution and its ministers. The Court agrees that there is such a ministerial exception. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such ac­tion interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The EEOC and Perich contend that religious organizations can de­fend against employment discrimination claims by invoking their First Amendment right to freedom of association. They thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves. Their position, however, is hard to square with the text of the First Amendment itself, which gives spe­cial solicitude to the rights of religious organizations. The Court cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

The EEOC and Perich also contend that Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, precludes recogni­tion of a ministerial exception. But Smith involved government regu­lation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. Pp. 13–15.

2. Because Perich was a minister within the meaning of the minis­terial exception, the First Amendment requires dismissal of this em­ployment discrimination suit against her religious employer. Pp. 15–21.

(a) The ministerial exception is not limited to the head of a reli­gious congregation. The Court, however, does not adopt a rigid for­mula for deciding when an employee qualifies as a minister. Here, it is enough to conclude that the exception covers Perich, given all the circumstances of her employment. Hosanna-Tabor held her out as a minister, with a role distinct from that of most of its members. That title represented a significant degree of religious training followed by a formal process of commissioning. Perich also held herself out as a minister by, for example, accepting the formal call to religious ser­vice. And her job duties reflected a role in conveying the Church’s message and carrying out its mission: As a source of religious in­struction, Perich played an important part in transmitting the Lu­theran faith.

In concluding that Perich was not a minister under the exception, the Sixth Circuit committed three errors. First, it failed to see any relevance in the fact that Perich was a commissioned minister. Alt­hough such a title, by itself, does not automatically ensure coverage, the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of the employee’s position. Second, the Sixth Circuit gave too much weight to the fact that lay teachers at the school performed the same religious duties as Perich. Though relevant, it cannot be dispositive that others not formally recognized as ministers by the church per­form the same functions—particularly when, as here, they did so only because commissioned ministers were unavailable. Third, the Sixth Circuit placed too much emphasis on Perich’s performance of secular duties. Although the amount of time an employee spends on particu­lar activities is relevant in assessing that employee’s status, that fac­tor cannot be considered in isolation, without regard to the other con­siderations discussed above. Pp. 15–19.

(b) Because Perich was a minister for purposes of the exception, this suit must be dismissed. An order reinstating Perich as a called teacher would have plainly violated the Church’s freedom under the Religion Clauses to select its own ministers. Though Perich no longer seeks reinstatement, she continues to seek frontpay, backpay, com­pensatory and punitive damages, and attorney’s fees. An award of such relief would operate as a penalty on the Church for terminating an unwanted minister, and would be no less prohibited by the First Amendment than an order overturning the termination. Such relief would depend on a determination that Hosanna-Tabor was wrong to have relieved Perich of her position, and it is precisely such a ruling that is barred by the ministerial exception.

Any suggestion that Hosanna-Tabor’s asserted religious reason for firing Perich was pretextual misses the point of the ministerial ex­ception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful is the church’s alone. Pp. 19–20.

(c) Today the Court holds only that the ministerial exception bars an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. The Court expresses no view on whether the exception bars other types of suits. Pp. 20–21.

597 F. 3d 769, reversed.

ROBERTS, C. J., delivered the opinion for a unanimous Court. THOM-AS, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which KAGAN, J., joined.

Go to http://www.supremecourt.gov/opinions/11pdf/10-553.pdf to read the case.

This case shows how a poorly handled work comp claim can turn into a litigation nightmare. Here the battle is over the production of original medical records. The point is the lawyers, courts, and now you can read this case, which has already cost thousands to litigate, simply because a claim was mis-managed. Note that the claimant also filed a claim with the EEOC in addition to her work comp claim.

The EEOC has just released its plan for 2012-2016. As you can imagine, stepped up investigation and litigation are part of this plan. Given their current agenda, priority will be given to those with disabilities and adverse impact racial scenarios that can be litigated on a class basis (criminal background, credit checking, layoffs, etc).

Below is an amazing DOL news release. It is the first “reverse discrimination” case I’ve seen where an employer was sued by both Black and White employees because it preferred Hispanic workers. I wonder what the management justification was? Maybe because they cost less and work harder? Why else would they be preferred? There is no claim that they were illegal. If you look at their management directory it seems “balanced” for a Texas workforce. I can tell you now that this is just the beginning of a compliance trend. Many low wage paying employers prefer the work ethic and cost of Hispanic workers. It’s a fact, Jack. Just like new immigrant cultures were preferred 1800’s manufacturing plants. And 1970’s LA sweatshops. Problem is we are addressing the symptom, not the cause. The law will never be able to create a cultural shift in work ethic or cost. Sure we can mandate tolerance but what more?  I expect unions and competing employers will push for more cases like this, especially where federal dollars are concerned.

Agreement includes $219,000 in back wages and interest for 69 African-American and Caucasian applicants plus job offers for some

HOUSTON —The U.S. Department of Labor’s Office of Federal Contract Compliance Programs today announced that government contractor JacintoPort International LLC has agreed to settle allegations of hiring discrimination on the basis of race involving 48 African-American and 21 Caucasian job applicants who were rejected for longshoreman positions at the company’s cargo facility in Houston.

“In this day and age, it is shocking that any company would allow race to be a factor in determining who gets hired,” said OFCCP Director Patricia A. Shiu. “This settlement should put all federal contractors on notice that, in the Obama administration, we will be persistent when it comes to rooting out workplace discrimination and will vigilantly monitor employers who violate the law until they get it right.”
 
OFCCP previously cited JacintoPort for violating requirements of Executive Order 11246 by failing to implement an applicant tracking system for new hires, and to develop and execute action-oriented programs to recruit women and African-Americans. That matter was settled on June 6, 2006, with a conciliation document in which JacintoPort agreed to correct the violations and produce semiannual reports on the company’s progress in employing women and minorities.

In reviewing those progress reports, OFCCP investigators found that the company was giving preferential treatment to Latino applicants and systematically discriminating against African-Americans and Caucasians seeking longshoreman jobs. Under the terms of the latest conciliation agreement, JacintoPort will pay $219,000 in back wages and interest to the affected individuals, and make 17 job offers to members of the original class as longshoreman positions become available. In addition, JacintoPort has agreed to undertake extensive self-monitoring measures to ensure that all hiring practices fully comply with the law, including record-keeping requirements.

JacintoPort, a wholly-owned subsidiary of Shawnee Mission, Kansas-based Seaboard Corp., currently holds more than $1.2 million in contracts to store and transport cargo for the Defense Commissary Agency.

On January 25th the NLRB issued its second lengthy memo on Social Media use by employees. Like the first report, it is disjointed, poorly organized, and leaves employers with more questions than answers. In this 25-minute video Don Phin goes over the learning that can be gleaned from the report. This is a video that applies to every employer!