January 2011 Compliance and Culture Newsletter

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

This issue discusses:

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

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

Please click here to view the newsletter in PDF.

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

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

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

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

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

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

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

Click here to read the case.

How Well is HR Doing?

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

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

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

How Does Your State OSHA Plan Rate?

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

Busted!

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

Sexual Harassment and Young Workers

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

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

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

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

Work is Hell

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

Beware of FLSA Violations!

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

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

Designing Your Office Environment

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

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

OSHA Targets “Texting While Driving” on Company Business

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

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

Future Risks

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

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

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

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

Would You Be Prepared for an EEO Audit?

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

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

Discrimination Claims Keep Coming

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

Getting the Accommodation Right

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

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

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

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

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

Click here to read the case.

The Broad Scope of Retaliation

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

This case carries two lessons for employers:

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

Accommodation Ideas: Common Sense, Low Cost

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

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

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

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

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

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

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

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

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

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

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

Career Ladders

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

Tips on Communicating with Coworkers about Disability and Accommodations

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

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

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

Form of the Month

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

Podcast

Click here to listen to this month’s newsletter podcast.

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©2011 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.

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