Tag: ADA Amendments Act
“Sandwich every bit of criticism between two heavy layers of praise.” – Mary Kay Ash, Founder, Mary Kay Cosmetics
This issue discusses:
- Editor’s Column: Managing the Second-Greatest Risk at Your Company
- Frequent Absences from Work Don’t Necessarily Render an Employee Unqualified Under the ADA
- Doctrine of “Unclean Hands” Bars Employee from Recovery
- Court Limits Reinstatement Obligations After 12 Weeks of FMLA Leave
We have also provided you with the Form of the Month.
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Editor’s Column: Managing the Second-Greatest Risk at Your Company
The greatest risk any business, including yours, faces is lack of proper sales and marketing. With today’s commoditization of products and services, it’s the experience that tends to matter most. Those companies that produce the best sales and marketing experience will usually be the most profitable. That’s why roughly half of all training dollars go for sales and marketing training. If one salesperson outsells another one 2 to 1, you have a 100% variance. That’s a good reason to spend money on sales training. The remaining training dollars go toward everything else: From operations, technology, customer service, finances, to — you guessed it — HR!
The second greatest risk your company faces is not having quality HR practices. Most companies have randomized ones. Do you? Anytime I’ve run the HR That Works Cost Calculator for a client, the “variance,” cost, or risk associated with the company’s HR practices come to at least 10% of payroll. This figure combines a company’s hiring practices, employee productivity, turnover, teamwork, time management, safety record, employment practice exposures, and other factors. When you think about it, the only other area of your business with this high a variance might be customer service. This means that sales, marketing, human resources, and customer service have the greatest variance within an organization – and, thus, the greatest amount of risk. Unfortunately, few businesses can insure themselves against these risks. It’s Darwinism at its best.
If any other part of your business had a 10% or greater variance, you’d be in a heap of trouble. If you have a 10% variance in how you manage your financial books, you’d probably be in jail. A 10% variance in product quality would mean you’d be facing liability suits regularly. A 10% variance in how you deliver your professional services would lead to a high frequency of E&O claims.
I’ll be the first to admit that HR isn’t sexy. However, my point is that it can be and should be! Sales and marketing is all about “them.” HR is about “us” – about who we are as human beings, not just human resources. I’m amazed that more HR professionals don’t take greater advantage of the HR opportunity. Perhaps you’re primarily engaged in administrative or financial functions and have been handed the HR role. That’s awesome. If you don’t like the idea of HR, then call it something else, such as the “People Excitement” role. Call it whatever will work. However, don’t underestimate the opportunity you’ve been handed.
One of the roles of HR is to make sure that our employees are promise keepers. They have to live up to the promises our sales and marketing communications make. Ultimately, the sales and marketing promise means delivering great client or customer experiences. That’s what matters now more than anything else. How can you, as an HR manager, help employees deliver great customer experiences?
If neither you nor anybody else in the company wants to jump on this opportunity, hire somebody part-time to help you do it. Think about it this way: How would you like to have poor hiring practices, high employee turnover, low productivity, poor teamwork, lousy training, high Workers Comp and Employment Practices claims, misuse of benefits — and a ton of unnecessary and expensive and destructive drama? All of a sudden, having good HR practices doesn’t seem like such a bad idea.
What’s most important is what needs to be done now. Where’s the stress in your organization? What feels unfair to people? We can certainly try to help eliminate some of the victimization in the workplace. At the same time, we have to ask, “What’s going exceptionally well?” How can we support getting twice of that? How can this provide a model for other departments or functions?
The unfortunate truth is that most people who wear the HR hat in small to mid-sized companies aren’t really excited about their job; in a sense, they got the job by default. Chances are that they didn’t say, “I can’t wait to get a hold of this and kick you know what!” Let’s hope that you or your HR manager isn’t that kind of person. Don’t give up on trying to make a difference just yet. Focus on the value to help generate greater productivity, profitability, and joy on a daily basis. Focus on the potential that exploiting such an opportunity can provide, not just for the company, but for the manager’s career and well-being.
How can you start being this person if you wear the HR hat? My answer: Begin by doing at least one proactive thing every month to improve some part of the HR function. Don’t have a narrow view of what HR can stand for. It’s not just about payroll, benefits administration, and making sure that you’re compliant. It’s about tapping into people’s heads and hearts so that you can create something special together. There are plenty of tools on HR That Works to support you on this journey. Begin to educate yourself by reading the newsletter or listening to podcasts, and then you tackle one proactive strategy a month. Take a look at the HR Implementation Plan to give you some great ideas. Do this for a year and you’ll be able to look back and be proud of the body of work you’ve generated. Also, make sure to report to ownership or management the strategy you’ve developed and how it will impact the company (a one-page memo will suffice). Here are 10 quick steps you can take to start making a difference today:
- Make sure your employee handbook is up to date. Have an attorney review it. Then bring it to life. To see the sample employee handbook we did for the San Gabriel YMCA, click here. Now that’s an awesome employee handbook!
- Skill-test all your employees. Go to www.Previsor.com to see what test(s) they offer for each one of your positions. The cost will probably come to $20 to $50 per employee – an investment that’s more than worth it. The test results will give you facts, rather than assumptions, letting you know which employees have the skill sets and which need some training.
- Make sure everyone—managers and rank-and-file employees alike—has gone through sexual harassment training. They need to know the company’s policy and acknowledge it annually. When I spoke to a CEO group recently, one of the participants told me that her company had just settled a sexual harassment case that she felt was frivolous for $350,000! Fortunately, the company had Employment Practices Liability Insurance, which offset much of the settlement cost. HR That Works offers a variety of lawsuit prevention tools and training.
- Create your team rules. Look at the sample Team Rules template on HR That Works and tweak it to work for your company. Make the rules something in which you can take pride. Once you finalize it, go down to Kinko’s, have it blown up and laminated, and then have all your employees sign it so that they can walk by and have an attachment to it every day.
- Require use of the Overtime Authorization Form. One of our printing press clients with 80 employees saved roughly $100,000 in one year by using it. “Unwarranted” overtime fell by $5,000 the first month they used the form – a $60,000 annual saving. Next, the company analyzed those clients who were causing “legitimate” overtime and realized that it wasn’t passing along this added expense to them – which meant that the firm was barely breaking even or losing money on these jobs. They let their clients know about the costs of last-minute demands and told them they would charge them a premium in the future. The company sent clients who didn’t want to go along with this program off to its competitors. Finally, to minimize overtime stemming from poor internal practices, the company applied TQM to these activities.
- Set up a lunch-and-learn program (preferably monthly) for your management team. Use these programs to do “workshops” in which you set a theme, present a challenge, and work as a team to come up with some solutions. Other meetings can focus on a learning mode. Watch one of the excellent HR That Works leadership Webinars — any one of them will suffice as a start. Most managers outside of the sales arena get very little training, perhaps because businesses are concerned about its time and cost. If you have employees who are classified as exempt, you’re certainly allowed to have them eat a healthy lunch and hold a one-hour training session or workshop. You might get so excited about the idea that you even start doing these on a bi-weekly basis.
- Join a “mastermind group” with other HR executives. These groups support each other, challenge each other, and put your feet to the fire. All the successful executives I know are in mastermind groups. I ran a group for senior HR executives because they realized that had a personal need for it. If you’re an HR That Works Member and would like to start such a group, e-mail me, and I’d be happy to send you a whole protocol and process that will help you get started.
- Distribute the Employee Compliance Survey. This is the single most powerful compliance form ever designed. Plaintiff’s lawyers don’t want you using it because it can cut the amount of employment law litigation in half. Because I no longer litigate, I have no qualms about making sure you use this powerful document. I don’t know of a single company using this tool that has suffered an employment verdict. An attorney from Tennessee told me that his client had won a summary judgment using the form; I also had a call from a company in Fort Lauderdale who said that after employees wrote “Fifth Amendment” across the form they did an investigation and found a serious sexual harassment situation that was about to evolve into an employee lawsuit. I would suggest distributing the form twice a year.
- Run your numbers in the HR That Works Cost Calculator by clicking here. I’d encourage you to watch my explanatory video first. These numbers will help you identify your HR story from a bottom-line perspective, and provide all the ammunition you need to liberate some of your time so you can do a better job of working on HR – not just in HR.
- Survey your management team by using the HR Department Survey. Don’t guess at what types of support the rest of the management team needs from HR. Survey them to find out. I find that in companies where HR is not strategic in nature, it will receive good scores for payroll and benefits administration and low scores for hiring, performance management, or training.
Conclusion: Those are a handful of ideas to help get moving on doing something with this opportunity. There’s magic in doing one of them today!
Frequent Absences from Work Don’t Necessarily Render an Employee Unqualified Under the ADA
The U.S. Court of Appeals for the First Circuit ruled recently that an employee who frequently missed time from work due to chronic fatigue syndrome had the right to present her Americans with Disabilities Act (ADA) claims to a jury. The Court found significant the fact that the employee had been accommodated in the past through a flexible work schedule that allowed her to work regularly.
Facts of the Case: In Valle-Arce v. Puerto Rico Ports Authority, the employee, who worked in the human resources department of the Puerto Rico Ports Authority, suffered from chronic fatigue syndrome (CFS). Her symptoms included insomnia, joint and muscle pain and weakness, and headaches.
To accommodate her insomnia, her doctor had suggested changing her work start time from the employer’s standard 7:30 a.m. start time to 9:00 a.m., and she communicated this to her employer. For two years, the employee’s supervisor accommodated her request by allowing her to come in to work later, as long as she completed the requisite 37.5 hours per week or accounted for any shortfall with vacation or sick leave.
Subsequently, the employee was assigned a new supervisor who began to question her flexible schedule almost immediately and monitor her entry and exit times. In addition, the employee alleged that her new supervisor harassed her by, for example, reprimanding her for late arrivals, telling her that insomnia was not an excuse for absences and, sometimes requiring her to obtain doctors’ notes covering absences of one or two days, when the employer’s policy required such notes only for absences of three days or more. Over time, according to the employee, her new supervisor’s alleged harassment caused her CFS symptoms to worsen, to the point that she needed to take two extended medical leaves.
After she returned from her first period of leave, the employee’s supervisor recommended disciplining her for mishandling the reasonable accommodation request of a coworker. The company eventually terminated the employee because she allegedly violated confidentiality rules in handling an employee’s reasonable accommodation request and used her work computer and other work resources for a personal matter during work time. At trial, the lower court granted the employer’s motion for judgment as a matter of law, finding that the employee was not a qualified individual under the ADA because attendance was an essential function of her job. The employee then filed an appeal.
The Court’s Ruling: On appeal, the U.S. Court of Appeals for the First Circuit vacated the lower court’s decision. Although acknowledging that attendance is an essential function of any job, the Court noted that the employee presented evidence that the flexible work schedule she had requested as an accommodation would have allowed her to fulfill the essential function of attendance. The employee testified that she had never been reprimanded during the time her former supervisor had allowed her to work a flexible schedule; and that the stress caused by her new supervisor’s alleged haranguing about her attendance led to her having to take extended medical leave, leading to the long absences on which the trial court based its ruling that she was unqualified.
The Court also held that a jury might have considered the employee’s testimony regarding poor treatment by her new supervisor to be evidence of disability discrimination or retaliation for her requests for a reasonable accommodation.
Finally, the Court noted, the employee presented enough evidence for a jury to question whether her termination was retaliatory, as she testified that other employees used their computers for personal matters and that she did not violate any agency policies in her handling of her co-worker’s reasonable accommodation request.
Practical Impact: The ADA Amendments Act of 2008 makes it far easier for employees to show that their health condition qualifies as a disability. In this case, the employee was accommodated under the regime of a prior supervisor, but her new supervisor was less willing to accommodate her request for flexible work hours.
Although new supervisors are generally free to enforce attendance standards that a prior supervisor did not, if the new supervisor rejects a prior accommodation that allowed the individual to meet the essential functions of their position, as was the case here, the employer could face liability under the ADA.
Article courtesy of Worklaw® Network firm Shawe Rosenthal (http://www.shawe.com/).
Doctrine of “Unclean Hands” Bars Employee from Recovery
In the California case of Salas v. Sierra Chemical Co., the court denied an ADA and Workers Comp retaliation claim when the employer discovered after the fact that the Social Security number that Salas had used to secure employment with the company belonged to a man in North Carolina! In making its ruling, the court noted that Immigration Reform and Control Act of 1986 (IRCA), requires that employers refrain from knowingly hiring or continuing to employ unauthorized aliens.
However, the IRCA also “prohibits aliens from using or attempting to use “any forged, counterfeit, altered, or falsely made document” or “any document lawfully issued to or with respect to a person other than the possessor for purposes of obtaining employment in the United States.”
“These facts, if not genuinely disputed by Salas, would entitle Sierra Chemical to judgment as a matter of law based on the complete defense of the after-acquired-evidence doctrine … Salas misrepresented a job qualification imposed by the federal government, i.e., possessing a valid Social Security number that does not belong to someone else, such that he was not lawfully qualified for the job. Further, Salas placed Sierra Chemical in the position of submitting a perjurious I-9 form and filing inaccurate returns with the Internal Revenue Service and the Social Security Administration. In these circumstances, Salas should have no recourse for an allegedly wrongful failure to hire.”
The court further ruled that the “unclean hands doctrine” barred the plaintiff’s wrongful discharge and contractual claims because “[p]laintiff’s misrepresentations went to the heart of the employment relationship and related directly to her wrongful discharge and contractual claims … In light of the nature of the misrepresentation, the fact that it exposed Sierra Chemical to penalties for submitting false statements to several federal agencies, and the fact that Salas was disqualified from employment by means of governmental requirements, we conclude that Salas’s claims are also barred by the doctrine of unclean hands.”
As a last-ditch effort to continue his case, the plaintiff tried to rely on a California bill passed to provide broader protections to workers under state law. The court dismissed this effort as well, stating that, “the provisions of SB 1818 make explicit California’s preexisting public policy with regard to the irrelevance of immigration status in enforcement of state labor, employment, civil rights, and employee housing laws. Thus, if an employer hires an undocumented worker, the employer will also bear the burden of complying with this state’s wage, hour and Workers Compensation laws.”
“However, while SB 1818 provides that undocumented workers are entitled to [a]ll protections, rights, and remedies available under state law, the enactment does not purport to enlarge the rights of these workers, instead declaring that its provisions are declaratory of existing law. Existing law precluded an employee who misrepresented a job qualification imposed by the federal government, such that he or she was not lawfully qualified for the job, from maintaining a claim for wrongful termination or failure to hire … This rule applies regardless of immigration status. Moreover, it does not frustrate the purposes of SB 1818 because it allows undocumented immigrants to bring a wide variety of claims against their employers as long as these claims are not tied to the wrongful discharge or failure to hire … Accordingly, at the time SB 1818 was enacted, an undocumented immigrant possessed no right under state law to maintain a claim for an allegedly discriminatory termination or failure to hire when the claim would otherwise be barred by the after-acquired-evidence or unclean hands doctrines.”
Bottom line for employers: Make sure that you do proper immigration and other background checks and act on any misrepresentations. (We recommend you use http://www.globalhrresearch.com/ for this purpose). Also, have a policy that declares that any misrepresentations in the hiring process will result in termination of employment. Add this policy to your job applications. Remember, nobody has a right to lie their way into a job. Also, bear in mind that this is a “narrow” decision, and there are many circumstances (such as wage payments or Work Comp coverage) in which immigration status is not a factor under California law.
Court Limits Reinstatement Obligations After 12 Weeks of FMLA Leave
In the case of Rogers v. County of L.A., the court ruled that an employee who was out on more than 12 weeks of leave no longer enjoyed protection under the FMLA for job reinstatement. Here’s the court’s ruling (edited for brevity):
First, the CFRA statutory language (which mirrors the FMLA) expressly allows an employee “to take up to a total of 12 workweeks in any 12-month period.” The statute also requires an employer to provide “a guarantee of employment in the same or a comparable position upon the termination of the leave.”
Second, other obligations under the CFRA are tied expressly to the 12-week protected leave policy. For example, the employer may require the employee to use accrued sick leave “during the period of the leave.” The employer is only required to maintain and pay for coverage in a Group Health plan “for the duration of the leave, not to exceed 12 workweeks in a 12-month period.” Under certain circumstances, the employer can recover premiums paid for maintaining coverage for the employee under the Group Health plan if the employee “fails to return from leave after the period of leave to which the employee is entitled has expired.”
Third, other courts interpreting the CFRA and the FMLA have concluded that the statutes only ensure protected leave for a 12-week period. In the Neisendorf case, the court cited three federal cases holding that an employer does not violate the FMLA when it fires an employee who is unable to return to work at the conclusion of the 12-week protected period.
Finally, policy considerations underlying the FMLA, which closely parallels our CFRA, support our conclusion. In enacting the FMLA, Congress was concerned about “inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods. “The purposes of the FMLA are: “(1) to balance the demands of the workplace with the needs of families, (2) to entitle employees to take reasonable leave for medical reasons, and (3) to accomplish [these] purposes … in a manner that accommodates the legitimate interests of employers.”
Bottom line: Let employees know that there is no ADA job protection after 12 weeks of leave. Also, remember that you might still have an accommodation obligation under the ADA to do the job for which you hired them, unless doing so constitutes an undue hardship (which was not argued in this case).
Form of the Month
Creativity Checklist (PDF) – Use this list to stimulate your (and your employees’) creative juices.
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©2011 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.