Tag: Age Discrimination
“We are unlikely to outperform our self-image.” –Maxwell Maltz, author of Psycho-Cybernetics
This issue discusses:
- Editor’s Column: On Being Stupid
- Fighting Back Disengagement
- On-The-Job Training
- A Dozen Thoughts on Hiring Low Wage Workers
- Supervisor’s Comments Doom Summary Judgment for Employer in Age Discrimination Case
- Bullies at Work
- Question of the Month
We have also provided you with the Form of the Month.
Please click here to view the newsletter in PDF.
Editor’s Column: On Being Stupid
The College football world was rocked at the beginning of the season by the possibility that its shining star “Johnny Football” Manziel, last year’s freshman Heisman trophy winner, may not be able to play this season because he violated NCAA guidelines by selling his autograph. Luckily for everyone the issue has gone away…at least for now. While one can debate all day long whether or not college athletes should be able to sell their autography, the current rules of the game prohibit them from doing so. I’m sure that Mr. Manziel knew this fact but it appears he went for it anyway. In the process he seemed both arrogant and somehow above it all… and I’m sure he wanted the easy money. Note: the young man comes from a successful family so having access to money to meet basic needs is not an issue.
What Mr. Manziel did not consider was the impact his actions could have on the involved stakeholders. His team, school, SEC, broadcast stations, fans, family, etc.
Unfortunately, I have seen the same thing happen in the workplace. Whether you call it hubris, stealth, harassment, or some other name, seldom does the actor consider the impact their stupid or wrongful conduct will have on the stakeholders involved, including their coworkers, company ownership, the bottom line, and their own family members. Fact is, nobody today can hide from scrutiny. The whole idea of getting away with things and nobody finding out is rapidly fading away. One stupid statement, one stupid social media post, one sketchy transaction and a career can be ruined.
What’s the answer? Some suggestions:
- Hire for character not just for skills.
- Find out what sketchy things people have done in their past.
- Put people through ethical scenarios and see how they respond.
- Monitor conduct where practical.
- Don’t tempt people unnecessarily.
- Don’t trust blindly. Have checks and balances in place.
- Engage in swift damage control.
As in sports there will always be executives and employees who wish to skirt the rules. You must be clear about what you stand for and to what degree you will enforce that standard, no matter who the culprit may be.
Fighting Back Disengagement
Jim Collins, author of Good to Great and other excellent books spent some time among West Point Cadets and came away with additional insights into leadership. According to a quote in Inc. magazine he sees a triangular relationship for excellence:
“If you want to build a culture of engaged leaders and a great place to work,” he says, “you need to spend time thinking about three things.”
- Service to “a cause or purpose we are passionately dedicated to and are willing to suffer and sacrifice for.”
- Challenge and growth, or, “What huge and audacious challenges should we give people that will push them hard and make them grow?”
- Communal success, or, “What can we do to reinforce the idea that we succeed only by helping each other?”
Collins says he has observed these principles in action in a number of great companies he has studied, at least during their best years—including IBM, Apple, Johnson & Johnson, Southwest Airlines, and Federal Express.
Not a bad way to look at the leadership in your company!
I attended a San Diego Resources Forum meeting where 3 executives from Veridiam (www.veridiam.com) shared an on-the-job training program which helped grow EBITA by 60% between 2009 and 2013. The company saw an increase in sales, internal promotions, and a decrease in voluntary turnover and employee accidents. Here are some of the valuable takeaways from those presentations.
- The company is a manufacturer of highly specialized tubing products.
- Veridiam was growing rapidly in part due to acquisitions. As a result of that culture clash their turnover sky rocketed from roughly 5% to 17%. They were losing “tribal knowledge” with that turnover. They realized that if they didn’t begin to capture and share that knowledge that the company would be in trouble. Three executives, Chris Frank, David Ibanez and Lorie Chapa, representing Human Resources, Operations and Training worked with the existing management team to develop an on-the-job training program.
- One of the first things that they realized was that they couldn’t wait for it to be perfect to begin.
- They had a lack of standard operating procedures, answers to frequently asked questions, and found themselves with numerous skill caps.
- Key knowledge workers became trainers a part of Veridiam University. They even got University shirts which they wore proudly.
- They tied the on-the-job program to both job descriptions and career ladders. (If you want to create free job descriptions and career ladders go to www.onetonline.org )
- They produced committed time slots to work with their managers from the different departments and different operations to develop the training programs.
- Each employee was provided with an individualized training plan that lasted between 6 and 18 months.
- All of these training plans were tied directly into results. They had a communication plan which included sending newsletters to the employee’s homes. This training tied into ISO requirements, legal government, and other manufacturing requirements. Skill sets were assessed through observations and exams.
- They found that the best way to recruit new workers into their program was through referrals. They offered $500 for an employee who was hired. It was interesting to hear them say they did not spread that bonus out through year as I often suggest because they claim that if the employee leaves during that time it is their responsibility not that of the referring employee.
- They spoke to other companies who were successful at putting together on-the-job training programs for their insights and strategies.
This was an absolutely excellent meeting. While I have always valued training, it was nice to see it tied into a bottom line improvement. Here are some additional points to consider:
- Will you make your training programs voluntary or mandatory?
- How will you brand and market the program?
- How will you capture best practices discovered during the training process and memorialize them in standard operating procedures?
- To what degree will you incorporate video training into the process?
- What stakeholders can provide training insights, strategies, and tools to improve the process? (i.e. customers, vendors, consultants, etc.)
- What type of cross training should be considered part of the program?
- What type of training management system will you use? For example, in this case they did not use a learning management system, but rather kept the information in an Excel spreadsheet. Often this is a factor of company size.
- What anticipated resistance can you head off in advance? What can employees possibly fear, such as intimidation of a program?
As Dr. Deming often reminded us, don’t ask for the ROI of training. You either believe education is the greatest form of leverage…or you do not.
A Dozen Thoughts on Hiring Low Wage Workers
- Think of the lifetime value of a great employee, just like a marketer thinks about the lifetime value of a client. It will help better position a budget for hiring.
- Brand your company as something more than people who clean toilets, serve burgers, or wash cars.
- Consider paying a few bucks more than the competition. As the saying goes “when you pay peanuts, you get monkeys.” In-N-Out Hamburger has exploited this insight for more than 30 years with great success. Look at their hiring page www.in-n-out.com/employment/restaurant.aspx. It allows them to hire the top 10% in fast food.
- Attend job fairs and work with various community agents, colleges, churches, etc.
- Advertise online, on Craigslist, Facebook, Twitter, MySpace, etc.
- Use employee referral programs. Put some juice into them! Also use referral cheat sheets–one page docs that explain the opportunity with contact info on the other side.
- Consider an online application process including kiosks for those who do not have convenient computer access.
- Keep your look and logos fresh. See if they can be made cool or green. Talk about how you use environmentally advanced or nutritionally satisfying products (Chipotle does this well. See their hiring page at http://careers.chipotle.com/en-us/careers/get_rolling/get_rolling.aspx).
- Talk about the fact that yours is a steady industry with room for advancement including great sales opportunities. Create career ladders for prospective employees.
- Show these employees you care by offering cool soccer shirts, English classes, company events, etc.
- Have a cool employee page on your website with video etc. Let your current employees sell the opportunity. Again, Chipotle does this well.
- Be honest about the opportunity. Sure, we may not be sexy but we are steady, there is always room for advancement, we can be flexible with work schedules, look to have fun, provide paid time off, offer health insurance, retirement plans, car allowances, and much more.
Work is as meaningful as we decide to make it, no matter the business we are in!
Supervisor’s Comments Doom Summary Judgment for Employer in Age Discrimination Case
In a case that illustrates how a supervisor’s ill-advised comments can result in liability for age discrimination; the U.S. Court of Appeals for the Sixth Circuit recently revived an age discrimination case by an employee who had been laid off in a reduction in force. In Sharp v. Aker Plant Services Group, Inc., the plaintiff alleged age discrimination in his selection for a reduction in force while a younger employee, whom he had trained, was retained. The supervisor allegedly told the plaintiff that the company had a succession plan “where you bring in younger people, train them, so that when the older people leave, that you’ll have younger people.” The employee also had a tape recording in which the supervisor was heard saying: “we’re all of the same age and we’re all going to retire and I had the opportunity to bring the next generation in, so that’s what we decided to do.” The lower court dismissed the case, holding that the supervisor’s comments expressed only a concern for maximizing the return on training costs by retaining employees who would stay with the company longer. On appeal, however, the Sixth Circuit disagreed, stating that the supervisor’s comments could be considered direct evidence of age bias, and that the supervisor’s comments showed that the employer’s asserted business concern – i.e., potential longevity with the company – was nothing more than a proxy for age. Another factor that the court stated was indicative of pretext was the fact that, despite stating that the younger employee was a better performer, the supervisor wrote a letter of recommendation stating that the plaintiff performed all of his duties at a high level. Thus, the supervisor’s ill-advised statements and his action in writing a letter of recommendation created a fact issue as to whether the employee’s age played into the termination decision.
Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).
Bullies at Work
In my position as editor of the Employment Practices Liability Consultant I wrote a lengthy article on the effort to pass bullying legislation. My personal opinion is that to do so would be a mistake. During most of my 17-year litigation career I represented employees. I told them about the “asshole boss” rule. If the boss is an asshole to everybody then there’s not much of a lawsuit available. However, if they treat the green people different than the red people they generate a discrimination claim. Our laws have been designed to force us into tolerating differences in age, sex, race, disability, and other distinctions. As you know, we’re already having a difficult enough time complying with and enforcing these laws.
I remember the early days of my career where California adopted a covenant of good faith and fair dealing common law right which proved to be a boondoggle for plaintiff’s attorneys. All they had to do was get a jury to say that an employee was treated unfairly and they’d pull down six-figure verdicts. Fortunately, the California legislature put an end to this nonsense limiting damages to contractual ones. I feel that the bullying legislation is equally ripe for abuse. Now all the poor performer has to do is say “I’m being bullied.” In a recent case I reported on, a woman frivolously pulled out the discrimination card when accused of poor performance. Even though the investigator found that she had in fact performed poorly her manager was fired for some stupid statements he made with other coworkers having nothing to do with the plaintiff’s complaint. Lesson learned: don’t like a tough boss, just called him or her a bully.
There are plenty of laws already available to protect against bullies.
- The discrimination laws mentioned above
- Tort laws such as false imprisonment, defamation, slander, assault and battery, invasion of privacy, intentional infliction of emotional distress
- And more
I’m sorry, but I don’t see bullying to be so pervasive that workers are marching in the streets. Yes, I would like to see a workplace without any stupid bullying. But to think that one can legislate it away is pure folly. As a final note, bullying can easily be eliminated in workplaces if leadership chooses not to tolerate it. If workers are an environment where they are in fact being bullied then they should get their resumes ready and start looking for a better environment. One reason why I quit litigation after 17 years is because going down that dark road or litigation helps no one… including the plaintiff. Finding a work environment where they are respected is the final solution.
Question of the Month
We recently had an employee get upset and say she was resigning. She told her boss and 2 executive officers. She also told her co-workers as she left that “it was great working with you.” Her husband picked her up at work and they left. Now, 2 days later, she is ready to talk to her boss and discuss the matter further. We had not terminated her because we were waiting on the written resignation, which she said she would type and turn in when she cleaned out her desk. Management is questioning whether she “legally” resigned because she never turned in written notice. – Do we have to have her resignation in writing?
Answer: There is no requirement that an employee give their resignation in writing. If you want to accept her resignation then memorialize the fact you have done so. The litmus test is this: If an employee quits would you be relieved or upset? If the former let them go. If the latter find out what can be done to keep them on board.
Form of the Month
Post-Accident Investigation Checklist (PDF) – Take a checklist approach any time you investigate an accident.
Click here to to listen to this month’s newsletter podcast.
REPRINT POLICY: Reprints are welcome! All you have to do is include the following notation with reprinted material:
©2013 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.
In a recent Federal Court of Appeals case against the Dept. of Veteran Affairs out of San Juan, the court dismissed an age discrimination case in a unique one-page decision basically telling the plaintiff that her counsel was clueless about appellate rules. Out of curiosity I Googled the attorney Elaine Rodríguez-Frank and found that this isn’t the first time the court has dismissed a similar claim against the DVA or similar agency. In fact, most of her cases face a similar result–dismissal. For example http://caselaw.findlaw.com/us-1st-circuit/1220672.html, http://caselaw.findlaw.com/us-1st-circuit/1219526.html and http://www.leagle.com/xmlResult.aspx?xmldoc=2004593326FSupp2d267_1562.xml&docbase=CSLWAR2-1986-2006. Most every case I could find with her name on it was dismissed, usually on procedural grounds. I wonder how her clients felt after they went through the trauma of litigation, only to be kicked out on technicalities? I wonder how much of a financial investment they had to make in these cases. I wonder if Ms. Rodriquez-Frank has it out for the US Government? One more reason why I quit litigating cases–the only ones who benefit in the end are the lawyers.
In Shelley v. Geren, a Ninth Circuit opinion, the US Army Corps of Engineers was sued by a long-time manager for age discrimination claiming the Corps failed to interview him and rejected his application for two promotions. The guy who got the job was 42. The Corps also interviewed a 55 year old, two 46 year olds, a 50, and 53 year old. In Gross v. FPL Financial Services (2009), the US Supreme Court found the McDonald Douglas approach to discrimination cases inapplicable to ADEA cases. This means that to bring the age claim, the plaintiff has to bring facts that age was the “but for” cause of his non-selection. In a sense, a “mixed motive” case fails in the age arena, something Congress is attempting to “fix” currently.
The court said that Shelley had a prima facie case because the positions went to a candidate twelve years his junior. The court did give the employer some grief because those making the hiring positions inquired about the projected retirement dates for employees. Despite the absence of names in the capable workforce matrix, the form at the matrix permitted the identification of specific employees. Marsh was also able to overcome dismissal of his case by pointing at his greater experience, education, and recognition. As with most Ninth Circuit cases there was a vigorous dissent.
“Be a mental engineer and use tried and proven techniques in building a grander and greater life.” —Joseph Murphy
This issue discusses:
- Editor’s Column: “I’m Disabled…So Take Care of Me”
- Organizing Through Enforcement of State Employment Laws
- Managing Disabled Workers
- Age Discrimination
- The ABCs of Right-to-Work Laws
- Stupid Boss Tricks
- Incorporate Reasonable Accommodation Practices Into Your ‘Onboarding’ Process
- National Labor Relations Act Update
We have also provided you with the Form of the Month.
Please click here to view the newsletter in PDF.
Editor’s Column: “I’m Disabled…So Take Care of Me”
I read recently that a record 5.4 million workers and their dependents have signed up to collect federal disability checks since President Obama took office. Many unemployed apply for disability benefits as soon as their unemployment benefits run out. There are now a record 10.8 million Americans on disability — double the number since Obama took office. The EEOC has stated a clear agenda to protect the disabled, with an ever-expanding definition of what the term means. The commission is even suggesting that government contracts include hiring of a minimum of 7% disabled.
Politics aside, that’s a lot of disability going on. The ultimate proof of victimology comes from the government labeling people disabled. Uncle Sam classified an astonishing 54 million people as “disabled” in 2005. That’s 19% of the population, or nearly one in five Americans. The U.S. Census Bureau has classified Disabled Americans as the nation’s largest “minority population segment.” Given obesity and longevity trends, we can expect a growing number of disabled, placing considerable strain on the government and employers alike. The crazy thing is most of this “disability” is not due to accident or genetic pre-disposition, but primarily to individual’s lack of exercise, poor diet, and mental attitude.
Of course, the recent jump in disability filings is largely due to current unemployment and poverty levels. The Obama administration is also encouraging it. To see the Department of Labor’s overall approach to this issue, visit http://www.dol.gov/odep/.
As a final note, I believe that we should help the truly disabled, especially those who can’t help themselves. On the other hand, people who make poor lifestyle choices and then claim disability as result garner little sympathy from me, as do those who “work the system,” taking precious dollars away from those in the disability community who deserve help. Unfortunately, I don’t see the administration making this distinction.
Organizing Through Enforcement of State Employment Laws
In doing online research, I came across an interesting white paper that discusses how vigorous (and perhaps manipulative) use of non-union laws can help with organizing efforts. Employers must realize that there are many stakeholders in the compliance game — perhaps including those some never thought of! Note: this is relevant to employers in any state, even though this campaign is targeting California employers.
Managing Disabled Workers
Speaking of help for disabled workers, the Office of Disability Policy (ODEP) has launched an excellent Web site to help hire and manage disabled employees. All employers should become familiar with it: www.dol.gov/odep/topics/Employers.htm.
Finding that a 41-year-old former tree-trimming foreman had presented sufficient evidence that a jury could find his employer’s stated reasons for his termination pretextual, the U.S. Court of Appeals for the Sixth Circuit has reversed a lower court’s grant of summary judgment for the employer, and allowed the employee’s age discrimination claim to proceed to trial. In Brooks v. Davey Tree Expert Company, the plaintiff, after working for the employer for 12 years, was assigned a new supervisor who almost immediately began making negative age-related comments to him. For instance, he allegedly told the employee that he was too old to be doing the kind of work he was doing, and, on one occasion, called him an “old fart.” The plaintiff was eventually terminated over an incident in which a crew member at the site where the plaintiff was working was injured by a falling tree. The plaintiff had been in his truck, and not out with his crew, at the time of the accident. The supervisor, determining that the accident might not have occurred if the employee had been out with the crew, reported his conclusion to the area supervisor, who terminated the employee based on the supervisor’s report.
After the plaintiff lost his age discrimination case on summary judgment, he appealed. In reversing the grant of summary judgment, the Court of Appeals noted that the age-based comments by the supervisor could be considered “probative of pretext,” even though the supervisor did not make the ultimate termination decision, because the area supervisor based his termination decision on the supervisor’s recommendation. In addition, the Court noted that the employer could not prevail on summary judgment based on the contention that it honestly believed that the plaintiff was responsible for the accident, because the employer had failed to articulate how or why it concluded that the accident would have been prevented if the plaintiff had been out with the crew, rather than in his truck.
Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).
The ABCs of Right-to-Work Laws
The term “right to work” often confuses HR executives, business owners, and employees alike. Roughly half the states in nation are “right-to-work” states, while the other half are not. In a right-to-work state, an employee does not have to join a union (where there is one) in order to obtain work. In non-right to work states they do. Proponents of right-to-work laws point to the fact that employment rates are higher in right-to- work states that allow for individual contracts. In non-right to work states, which have stronger union lobbying efforts, the argument is that employees in right-to-work states take advantage of the hard work of unions, but don’t have to pay any dues for the effort. It’s a fact that wages are higher in non-right-to-work states. However, if you look at geography, Northeastern and West Coast states tend to be the non-right to work jurisdictions where wages are higher in the first place.
State legislatures throughout the nation are continuing to introduce right-to-work laws. A lot has to do with the political balance of power in that state. Of course, conservative Republican states tend to favor right-to-work laws and Democratic pro-union states prefer what some call “forced unionism.” If you enter “right-to-work” in a search engine, you’ll see plenty of arguments both for and against these laws. To a read an excellent Wikipedia article on this topic, go to http://en.wikipedia.org/wiki/Right-to-work_law.
Stupid Boss Tricks
Peter Drucker and Dr. Edward Deming reminded us that poor performance is a management issue, not an employee one. Most managers receive little management training, and some are capable of such brilliant exploits as:
- Bringing somebody on your team going 45 mph. If your team is going 75 mph, what happens when you bring someone onto it who’s going 45 mph? I guarantee there will be crashes, upset, injuries, and fingers pointed. Make sure that you bring employees up to speed before you thrust them onto a team. Unless it’s an emergency, there’s no excuse for not having an excellent “onboarding” process. Remember that who you hire is the most important part of your job; not simply something to get over.
- Focusing on what people don’t get right. All of us screw up every day. Sometimes it’s a basic thing like accidentally deleting a document. At other times, we make some huge mistakes. Either way, when you’re a boss running 75 mph, it’s easy to nitpick. If you find yourself making more negative deposits than positive ones, cut it out.
- Never giving an “atta-boy.” As a corollary, if managers aren’t giving negative jabs, they’re not saying anything at all. There are no positive offsets. They make no time to show they care. Not a five-minute conversation, not a thank-you note, not a pat on the back, nada. How long does anyone want to work for a boss like that, even if they know they’re doing a good job?
- Taking credit for positive results and pointing fingers at the negative ones. We’ve all been around people like this — and not for long. The job of a boss is to make every person on his or her team a better player. When the team wins, the boss shares credit. When there are losses, the buck stops with the boss. When I search for an example of this behavior, Jets football coach Rex Ryan comes to mind. It’s all about “look at me” and, of course, when things go wrong, it’s not his fault; simply poor play by his players. Right.
- Setting employees up to fail. In my litigation days, I met plenty of bosses who went out of their way to create an employee’s failure, whether out of fear, revenge, or stupidity. Managers like this are a cancer on any organization. If an employee isn’t performing and ownership won’t let you fire them, call ownership out on it. If management still fails to make necessary changes and you can’t be at peace with it, then work someplace else.
- Running their own fiefdoms, detached from corporate objectives. I’ve seen many bosses build a bureaucratic wall around them to guarantee their personal survival. I’ve talked to executives who have run multi-million dollar departments more interested in protecting their retirement savings than growing the company. These managers will damage the company eventually. One reason why companies are smart to move managers around every few years is to keep them from building a moat around their department.
- Failing to keep their mouths shut. Managers learn things about people’s personal lives, job histories, medical problems, family problems, nasty little habits, and more. A manager who shares this information with more people than those who “need to know” is a manager who will get employees upset and the company sued. I remember one manager who was so curious about a subordinate’s possible breast enhancements that he snuck into her personnel files, reviewed her medical records, and proved himself “right.” Then the idiot chose to share thus information with his buddies at the company. When the employee got wind of the situation, you can understand her outrage. What this manager didn’t know was that she had undergone a double mastectomy due to breast cancer two years before, which is why she eventually had the enhancements. How does an employee relationship recover from a situation like that?
Of course, there are more horror stories, but that’s plenty for now. The answer: Promote only qualified people into management and train them constantly so they keep improving.
Incorporate Reasonable Accommodation Practices Into Your ‘Onboarding’ Process
Spring is in full swing — and a number of signs are indicating an increase in hiring of people with disabilities in both the Federal and private sectors. With Federal Executive Order 13548 – Increasing Federal Employment of Individuals with Disabilities and the potential changes for Federal contractors in the Office of Federal Contract Compliance Programs’ (OFCCP) Notice of Proposed Rulemaking (NPRM) for Section 503 of the Rehabilitation Act, employers would be wise to review their “onboarding” processes.
The purpose of this process is the smooth integration of new employees into their positions and company culture. If you already have an onboarding process, does your process consider reasonable accommodation issues for your new employees who might have a disability? It should. Take a look at your process and see if you need to incorporate these reasonable accommodation considerations.
A key to the success of any process, including the accommodation process, is education and training for those responsible for implementing it. Know who these players are in your organization. Who sets up a new employee’s workstation? Who provides access to the facility and parking? If a new hire with a disability needs an accommodation to be an effective member of your team, who will make sure the accommodation is in place for the individual’s first day of work? Key players will certainly include your human resources (HR) department, as well as managers and supervisors. Don’t forget to include staff from information technology (IT), facilities, and security departments in this training. Also, when conducting training, be sure to make everyone aware of the need and requirement to keep all medical information confidential.
Once your staff is educated about your company’s accommodation process for new hires, the next step is to make sure new hires know that they can and should ask for an accommodation if they know or think they might need one. Many individuals who know they need an accommodation to do the job successfully will choose to make an accommodation request. However, others might fear the job offer will be rescinded if they do so, and some might not be sure if they need an accommodation, or know how to request what they need. To deal with these issues, the individual who makes the job offer can share information about the company’s desire to facilitate a smooth transition and integration for the new employee — and explain employment policies, including that for implementing effective reasonable accommodations.
Whoever is responsible for responding to an individual who has accepted a job offer should be prepared to describe to the new employee the office location and the type of equipment the company will provide. This need not be detailed, but should include information about the work location and work area, such as: Parking is provided onsite or no parking at the site; standard computer, telephone, cell phone provided; ID card needed to access building; desk workstation/cubicle environment, etc. Also, if the new employee needs to fill out forms before the start date, or to go to a location to obtain an ID, etc., explain this in advance, giving the employee the opportunity to address other potential needs. Having all this information enables new employees to consider if they need to request a reasonable accommodation.
Effective onboarding of employees might require these accommodations:
- Access to Website and online forms
- Print material in an accessible format, including providing media in alternative format as needed (large print, Braille, text file, etc.)
- Accessible parking and building access (keyless entry, security issues, rest rooms, break rooms, exercise rooms, etc.)
- Use of service animals in the workplace
- Computer and communication technology access (alternative input devices, screen reading software, screen magnification, telephone amplification, smart phone or tablet apps, etc.)
- Workspace modifications (furniture, lighting, space, noise abatement, etc.)
- Services or work-related assistance (sign language interpreters, readers, note takers, etc.)
- Emergency evacuation and shelter-in-place plan needs
You don’t need to have all of these accommodations in place for the first day of work; however, an awareness of the potential need and a willingness to implement accommodations as part of your company culture will help you onboard new employees successfully. To help you update your onboarding process if needed, here’s a sample onboarding accommodation assessment form.
Anne Hirsh, M.S., JAN Co-Director
National Labor Relations Act Update
The U.S. Court of Appeals for the D.C. Circuit has found that an employer was required to reinstate an employee who the NLRB determined had been terminated unlawfully, despite his subsequent statements reflecting disloyalty to the employer. In Stephens Media, LLC v. NLRB, the employer appealed the NLRB determination that the employer, a newspaper publisher, violated the NLRA in connection with its termination of two employees.
One employee had been terminated after confronting a manager over the discipline of a co-worker for allowing a union representative onto the premises without management’s prior approval. After his discharge, the employee attended a public event at which he spoke critically about the employer, claiming that the employer failed to staff its newsroom adequately and that he had considered starting a rival newspaper.
In a separate incident, another employee was terminated after making a surreptitious recording of a meeting with management in which he expected to receive discipline but was denied the right to union representation.
With respect to the first employee, the D.C. Circuit upheld the Board’s determination that he engaged in “protected activity” when he confronted the manager over what he reasonably believed was the impermissible discipline of a bargaining unit employee (it did not matter whether he was correct in his belief). Despite the employer’s argument that the employee’s post-discharge comments showed blatant disloyalty, the Court held that his post-discharge comments did not absolve the employer of its obligation to reinstate the employee. The Court noted that where an employer seeks to avoid its obligations based on post-discharge conduct, the employer must demonstrate that the misconduct was so flagrant as to render the employee unfit for further service or a threat to efficiency at the plant. The Court found that the employee’s comments failed to meet this standard. With respect to the second employee, the Court deferred to the Board’s ruling that the surreptitious recording was protected activity because the employee reasonably believed that he was about to be disciplined and that the employer violated his right to have union representation. The Court noted that the company did not have a policy prohibiting audio recordings and that the recording was legal under state and local law.
Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).
Editor’s note: if employers don’t get by now what the administration is up to when it comes to protecting disgruntled employees, cases such as this should be a resounding wake-up call! Do yourself a favor and watch our recent NLRB webinar.
Form of the Month
HR Inspirational Posters (PDF) – Use these posters to stress the benefits of an effective Human Relations program for your employees.
Click here to to listen to this month’s newsletter podcast.
Reprints are welcome! All you have to do is include the following notation with reprinted material:
©2012 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.
In 2009 the US Supreme Court pretty much cut out “mixed-motive” cases in the age arena. Meaning you now have to show that “but for” age discrimination you would have suffered that loss of job, etc. If there is any legit reason for your termination then you lose. In response to this ruling the legislatures are busy trying to work their way around it and the EEOC has updated its regulations as follows (underlining mine):
§ 1625.7 Differentiations based on reasonable factors other than age (RFOA).
(b) When an employment practice uses age as a limiting criterion, the defense that the practice is justified by a reasonable factor other than age is unavailable.
(c) Any employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a “reasonable factor other than age.” An individual challenging the allegedly unlawful practice is responsible for isolating and identifying the specific employment practice that allegedly causes any observed statistical disparities.
(d) Whenever the “reasonable factors other than age” defense is raised, the employer bears the burdens of production and persuasion to demonstrate the defense. The “reasonable factors other than age” provision is not available as a defense to a claim of disparate treatment. (Meaning individual harassment, discrimination, etc.)
(e) (1) A reasonable factor other than age is a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances. Whether a differentiation is based on reasonable factors other than age must be decided on the basis of all the particular facts and circumstances surrounding each individual situation. To establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.
(2) Considerations that are relevant to whether a practice is based on a reasonable factor other than age include, but are not limited to:
(i) The extent to which the factor is related to the employer’s stated business purpose;
(ii) The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
(iii) The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
(iv) The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
(v) The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.
(3) No specific consideration or combination of considerations need be present for a differentiation to be based on reasonable factors other than age. Nor does the presence of one of these considerations automatically establish the defense.
Word to the wise: Make sure you can fit any promotion, termination, or layoff type decision into the guidelines set forth above.
During my litigation years I often handled age and sex discrimination cases emanating from layoffs produced after an acquisition. Of course the goal is to “leverage” the opportunity which means redundancy must go. Unfortunately, there are in fact cases where management sees it as an opportunity to shape the workforce toward its liking, including any biases that come with it. In the case of Life Technologies Corp. v. Super. Ct. (CA1/1 A131120 7/14/11) http://www.courtinfo.ca.gov/opinions/documents/A131120.PDF the plaintiff claimed he and others over 40 got the squeeze. They used the typical set up–excluded him from opportunities, attacked his performance, demoted him, and eventually fired him for performance. Of course he was denied any severance due his for cause termination.
In order to prove up the disparate impact portion of his case his attorneys wanted to gather answers to the following interrogatories:
(a) The names of all employees terminated during a two-year period, November 1, 2008 to June 28, 2010.
(b) The department each worked for when terminated.
(c) The date of termination.
(d) The age of each at termination.
(e) The reason for termination.
(f) Whether severance benefits were offered.
(g) Whether offered severance benefits were accepted.
(h) A description of any offered severance benefits.
(i) A detailed explanation of reasons for any failure to offer severance benefits.
(j) The identity (including name, address and telephone number) of all former Applied Biosystems employees still employed by LTC after the RIF.
(k) Whether the terminated employees were former employees of Appelera or Applied Biosystems.
In discussing the need for this statistical evidence the court stated as follows:
“Statistical proof is indispensable in a disparate impact case: …”The plaintiff must begin by identifying the specific employment practice that is challenged.”… “Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” […statistical analysis "must show a disparity that is 'sufficiently substantial' as to 'raise such an inference of causation'"] …”a plaintiff will typically have to demonstrate that the disparity in impact is sufficiently large that it is highly unlikely to have occurred at random, and to do so by using one of several tests of statistical significance”….
“Thus, the critical comparison in a disparate impact case is ‘the group that enters’ the [employment] process with the group that emerges from it.” … “The best evidence of discriminatory impact is proof that an employment practice selects members of a protected class . . . in a proportion smaller than in the actual pool of eligible employees.”…
Statistical evidence may also be utilized in a disparate treatment case. However, because discriminatory intent must be shown in such a case, statistical evidence must meet a more exacting standard. “[T]o create an inference of intentional discrimination, statistics must demonstrate a significant disparity and must eliminate nondiscriminatory reasons for the apparent disparity.” ….”statistical evidence is conditioned by the existence of proper supportive facts and the absence of variables which would undermine the reasonableness of the inference of discrimination which is drawn.”
“Thus, …although use of statistics is permissible [in a disparate treatment case], statistical evidence ‘rarely suffices to rebut an employer’s legitimate, nondiscriminatory rationale for its decision to dismiss an individual employee.’ …[T]his is so because …in disparate treatment cases, the central focus is less on whether a pattern of discrimination existed [at the company] and more how a particular individual was treated and why. As such, statistical evidence of a company’s general hiring patterns, although relevant, carries less probative weight than it does in a disparate impact case.”
“To some extent, then, the special interrogatories seek information arguably likely to lead to admissible evidence, although some of the information sought (e.g., descriptions of severance benefits) does not appear to be pertinent to any relevant statistical analysis. In any case, our inquiry does not end here because the information sought by the interrogatories implicates significant privacy rights of the third party employees/former employees.”
So what does all of this mean for you? If you are ever involved in one of these suits these are the type of inquiries that will be made. So ask these questions of yourself BEFORE conducting the layoff or termination! Also see the layoff and termination checklists on HR That Works.
In Sandell v. Taylor-Listug, Inc., an age discrimination case, a California court of appeal reversed the trial court’s decision to grant summary judgment in favor of the defendant employer, finding that triable issues of fact existed with respect to the employer’s motive for firing the plaintiff.
Robert Sandell (“Sandell”) was hired as Taylor-Listsug, Inc.’s (“Defendant”) senior vice president of sales. Approximately six months into his employment, Sandell suffered a stroke. Four months later, Sandell returned to work full time. During the remainder of his employment, Sandell required a cane to walk, and his speech became noticeably slower. Defendant’s CEO terminated Sandell’s employment a few days after Sandell’s sixtieth birthday, citing displeasure with Sandell’s performance. Sandell brought a claim against Defendant for age discrimination, and the trial court granted summary judgment in Defendant’s favor.
In reversing the lower court’s ruling, the court of appeal held that Sandell had presented sufficient evidence to establish a prima facie case of age discrimination. More specifically, he established a prima facie case that he was disabled with evidence that he needed to use a cane and that his speech was impaired as a result of his stroke. The court also found that there was conflicting evidence from which a jury could have concluded that Defendant’s proffered reasons for firing Sandell were unworthy of credence. Additionally, Sandell described two statements by Defendant’s CEO that potentially supported a finding that Defendant acted with an improper motive. The appellate court rejected the trial court’s dismissive conclusion that these were simply “stray” remarks that were of no legal consequence and could be disregarded. Moreover, the timing between Sandell’s hiring and firing (2004 to 2007), even if considered short, did not necessarily create a strong inference that no discriminatory motive existed, given that the effects of Sandell’s stroke caused him to appear older than he may have appeared at the time he was hired. Evidence of discriminatory animus also included testimony that the Defendant’s president said that he would rather fire older people and replace them with newer, younger people because doing so would be cheaper for the company.
This case serves as an important reminder to employers that any negative comment which directly or indirectly references an employee’s age, disability or other protected characteristic could potentially be construed as discriminatory, particularly given that many courts have moved away from applying the “stray remarks doctrine” in employment discrimination cases.
To read the case go to http://www.courtinfo.ca.gov/opinions/documents/D055549.PDF.
In its 2005 decision, Smith v. City of Jackson, the U.S. Supreme Court stated that disparate impact claims (involving employment actions that have a disproportionately negative impact on a protected class) are recognized under the Age Discrimination in Employment Act (ADEA), but further explained that such claim is not stated where the employer shows that its decision was based on a “reasonable factor other than age” (RFOA) even though the impact of the decision disproportionately affects older workers. The EEOC has now issued proposed revisions to the ADEA regulations regarding the meaning of “reasonable factors other than age.”
Facts and Circumstances. The proposed regulation is intended to clarify the scope of the RFOA defense. Under the proposed revision, whether an employment practice is based on RFOA is determined by the facts and circumstances of each case. The regulation also defines “reasonable factor” to mean “one that is objectively reasonable when viewed from the position of a reasonable employer . . . under like circumstances.” An employer seeking to use the RFOA defense must show that the employment practice was (1) “reasonably designed to further or achieve a legitimate business purpose” and (2) “administered in a way that reasonably achieves that purpose in light of the facts and circumstances that were known, or should have been known, to the employer.”
Reasonableness. The proposed regulation provides a non-exclusive list of factors deemed relevant to the reasonableness determination:
- Whether the employment practice and the manner of its implementation are common business practices;
- The extent to which the factor is related to the employer’s stated business goal;
- The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g. training, guidance, instruction of managers);
- The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
- The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
- Whether other options were available and the reasons that the employer selected the options it did.
Other than Age. The EEOC also proposes a non-exclusive list of factors for determining whether a factor is “other than age”:
- The extent to which the employer allows its supervisors to utilize unchecked discretion to assess employees subjectively;
- The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes; and
- The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.
The proposed revisions to the ADEA regulations are now open for public comment for 60 days from the date of publication. Once the comment period has expired, the EEOC will take some time to consider the comments before issuing final regulations.