As stated by the DOL “OFCCP is issuing this Directive in support of its ongoing policy commitment to address pay discrimination by federal contractors and subcontractors. This Directive specifies the procedures OFCCP field investigators use for reviewing contractor compensation systems and practices. It clarifies and improves OFCCP procedures in further support of the agency’s efforts to align pay discrimination enforcement with longstanding principles under Title VII of the Civil Rights Actof 1964 (Title VII).”

If you do government contracting you would be wise to follow these guidelines. Even if you are not a government contractor they point to the data they will be examining to address disparate compensation practices.

On April 25, 2012, the EEOC issued updated Enforcement Guidance regarding an employer’s use of arrest and conviction records in making employment decisions. The agency also issued a Question and Answer (Q&A) document that helps explain the Guidance.

According to the EEOC, a policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law. The Enforcement Guidance explains how the EEOC analyzes the “job related and consistent with business necessity” standard for adverse employment hiring decisions based on criminal records, and provides hypothetical examples interpreting the standard.

Arrests and convictions are treated differently for purposes of Title VII, since the fact of an arrest does not establish that criminal conduct has occurred. The EEOC acknowledges that an arrest may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. The Guidance notes, “[a]lthough an arrest standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.”

In examining whether an employer’s policy of screening individuals based on criminal convictions violates Title VII, the EEOC will look to see whether the employer’s policy provides an opportunity for an individualized assessment for those people identified by the screen in order to determine if the policy as applied is job related and consistent with business necessity. Under the new enforcement rules, the following should be considered by an employer when screening based on criminal convictions:

• The Nature and Gravity of the Offense or Conduct. The Guidance notes: “Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss). … With respect to the gravity of the crime, offenses identified as misdemeanors may be less severe than those identified as felonies.”

• The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence. The Guidance points out that the amount of time that had passed since the applicant’s criminal conduct occurred is probative of the risk he poses in the position in question. For example, the Guidance notes that the risk of recidivism may decline over a certain period of time.

• The Nature of the Job Held or Sought. Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used.”

The Guidance also lists examples of employer best practices for considering criminal records in connection with employment decisions. Among other examples, the Guidance advises employers to (1) develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct, (2) identify essential job requirements and the actual circumstances under which the jobs are performed, (3) determine the specific offenses that may demonstrate unfitness for performing such jobs, (4) determine the duration of exclusions for criminal conduct based on all available evidence, and (5) record the justification for the policy and procedures.

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

The Equal Employment Opportunity Commission recently issued an opinion concluding that under Title VII, employees may bring discrimination claims based on their transgendered status or gender identity.

Mia Macy was a male police detective in Phoenix, Arizona.  In 2010, Macy decided to relocate to San Francisco and pursue a position with the Bureau of Alcohol, Tobacco, Firearms, and Explosives.  After the interview process, a local director for the Bureau informed Macy that she would be able to fill the position provided that she passed a background check.  While her background check was pending, Macy informed the third-party contractor responsible for filling the position that she was in the process of transitioning from male to female.  The contractor relayed this information to the Bureau.  Five days later, the Bureau notified Macy that the position had been cut due to budget restrictions.  An EEO counselor at the Bureau, however, told Macy that another applicant had been hired for the position because that individual was farther along in the background investigation process.  Macy filed a discrimination charge against the Bureau, alleging sex discrimination, and discrimination on the basis of gender identity (as a transgender woman) and sex stereotyping.  When only her sex discrimination claim was accepted, however, Macy appealed.

The Commission reversed the decision, concluding that discrimination claims based on transgender status or gender identity are covered under Title VII.  The Commission based its conclusion principally upon the United States Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and subsequent decisions by federal courts.  In Price Waterhouse, the Supreme Court held that discrimination on the basis of gender stereotype (e.g., a woman denied partnership in a company because she was too “macho” and not “feminine” enough) is sex-based discrimination prohibited under Title VII.  Several United States Circuit Courts of Appeals have subsequently held that under this holding, Title VII bars “not just discrimination because of biological sex, but also gender stereotyping—failing to act and appear according to expectations defined by gender.”  Following this approach, the Commission reasoned that when an employer discriminates against someone because the person is transgender, the disparate treatment is “related to the sex of the victim.”  According to the Commission, this includes a person allegedly discriminated against for expressing his or her gender in a non-stereotypical fashion, and a person allegedly discriminated against because an employer is uncomfortable with or dislikes the fact that he or she has or is transitioning from one gender to another.

Going forward, employers should assume that the Commission’s opinion is legally correct.  While the Supreme Court has not specifically addressed whether transgender or gender identity discrimination claims are covered under Title VII, many lower courts have held that this is a protected class.  Therefore, given the current trend in federal courts to recognize the validity of such claims, the Commission’s opinion will certainly bolster an employee’s ability to bring gender identity and transgender discrimination claims under Title VII.

Article written by Josh Meeuwse and provided courtesy of Worklaw Network firm Franczek Radelet (www.franczek.com)>

Today, the Equal Employment Opportunity Commission (EEOC) released the first updates in nearly 25 years to its guidelines on when and how employers may inquire into an applicant’s arrest and conviction history.  According to the EEOC, the new Guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.  Our preliminary analysis confirms that the Guidelines do not appear to represent a fundamental shift in the EEOC’s positions, but rather summarize pre-existing guidelines and principles based on applicable case law and available demographic research.

The EEOC’s Updated Guidance

No federal law explicitly prohibits employers from so inquiring into an applicant’s past criminal history, however, court decisions and EEOC guidelines have previously recognized that, in some cases, disqualifying an applicant because of an arrest or conviction record could violate the Civil Rights Act of 1964, as amended (Title VII), which prohibits employment discrimination based upon race, color, religion, sex and national origin.  The updated Guidance notes that the use of criminal history may violate Title VII in one of two ways.  First, Title VII may be violated when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (i.e., disparate treatment liability).  Second, a violation may occur where an employer’s facially neutral policy of excluding applicants from employment based on criminal history disproportionately impacts African American and/or Hispanic applicants and is not job related and consistent with business necessity (i.e., disparate impact liability).

The Guidance distinguishes between the use of arrest and conviction records. According to the EEOC, an employer’s reliance on an arrest record in and of itself is not job related and consistent with business necessity because the fact of an arrest does not establish that criminal conduct has occurred.  However, an employer may make an employment decision based on the conduct underlying an arrest if that conduct makes the individual unfit for the position in question.  The EEOC further recognizes that a conviction record in most cases will usually serve as sufficient evidence that an individual engaged in particular conduct, but notes that in certain circumstances there may be reasons why an employer should not rely on a conviction record alone.

The Guidance cites to nationwide statistical data showing that African American and Hispanic individuals are arrested and convicted at a rate 2 to 3 times their proportion of the general population and states that this nationwide data provides a basis for EEOC to investigate an employer’s use of criminal records.  During an investigation, the EEOC will look to whether the particular employer’s use of criminal history has a statistically significant disparate impact on any protected group.

Once a disproportionate impact is shown, the employer may only avoid liability if it can show that the reliance on criminal history is job related and consistent with business necessity.  The revised Guidance sets out two circumstances in which the EEOC believes employers will consistently meet this defense:

1. The employer validates the criminal conduct exclusion for the position in question under the EEOC Uniform Guidelines on Employee Selection Procedures; or

2. The employer develops a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job.  The employer’s policy must also provide an opportunity for an individualized assessment of those people identified by the screen to determine if the policy as applied is job related and consistent with business necessity.

As to the first defense, the Guidance recognizes that in most cases this will not be a viable option because of the lack of currently available studies that could provide a framework for formal validation.  For the second defense, the Guidance notes that while an “individualized assessment” is not required under Title VII under all circumstances, the lack of an individualized assessment is more likely to result in a violation.

Best Practices Identified by the EEOC

The Guidance provides several examples of best practices for employers who consider criminal record information when making employment decisions (beyond a recommendation for more training).  In general, the EEOC advises employers to eliminate policies or practices that “exclude people from employment based on any criminal record” and to replace them with “narrowly tailored” policies that provide for targeted, individualized screening of specific offenses based on a job’s essential requirements and actual duties.  The Commission also recommends that employers keep a record of the justifications and research that supports those policies.  Finally, the EEOC suggests that when asking questions about criminal records employers should limit their inquiries to records for which an exclusion would be job related for the position in question and consistent with business necessity.

Conclusion

Background checks remain fraught with potential pitfalls for employers.  However, employers should not let those hazards stop them from performing proper due diligence on potential employees, provided that they do so in a targeted and individualized manner that relies only on criminal history in a manner that is consistent with the EEOC Guidance.  We will be providing clients with more detailed guidance and training opportunities in the coming weeks on this important update of the EEOC’s views on the use of criminal history records in hiring.

Article written by attorneys Doug Hass and Mike Warner and provided courtesy of Worklaw® Network firm Franczek Radelet.

Inc. Magazine did an excellent article on the history of the workplace you can read by clicking here.

Respondents, current or former employees of petitioner Wal-Mart, sought judgment against the company for injunctive and declaratory relief, punitive damages, and backpay, on behalf of themselves and a nationwide class of some 1.5 million female employees, because of Wal-Mart’s alleged discrimination against women in violation of Title VII of the Civil Rights Act of 1964. They claim that local managers exercise their discretion over pay and promotions disproportionately in favor of men, which has an unlawful disparate impact on female employees; and that Wal-Mart’s refusal to cabin its managers’ authority amounts to disparate treatment. The District Court certified the class, finding that respondents satisfied Federal Rule of Civil Procedure 23(a), and Rule 23(b)(2)’s requirement of showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The Ninth Circuit substantially affirmed, concluding, inter alia, that respondents met Rule 23(a)(2)’s commonality requirement and that their backpay claims could be certified as part of a (b)(2) class because those claims did not predominate over the declaratory and injunctive relief requests. It also ruled that the class action could be manageably tried without depriving Wal-Mart of its right to present its statutory defenses if the District Court selected a random set of claims for valuation and then extrapolated the validity and value of the untested claims from the sample set.

Held:

1. The certification of the plaintiff class was not consistent with Rule 23(a). Pp. 8–20.

(a) Rule 23(a)(2) requires a party seeking class certification to prove that the class has common “questions of law or fact.” Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Here, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank ofRichmond, 467

U. S. 867, 876, and respondents wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination question. Pp. 8–12.

(b)

General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, describes the proper approach to commonality. On the facts of this case, the conceptual gap between an individual’s discrimination claim and “the existence of a class of persons who have suffered the same injury,” id., at 157–158, must be bridged by “[s]ignificant proof that an employer operated under a general policy of discrimination,” id., at 159, n. 15. Such proof is absent here. Wal-Mart’s announced policy forbids sex discrimination, and the company has penalties for denials of equal opportunity. Respondents’ only evidence of a general discrimination policy was a sociologist’s analysis asserting that Wal-Mart’s corporate culture made it vulnerable to gender bias. But be-cause he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.” Pp. 12–14.

(c)

The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of giving local supervisors discretion over employment matters. While such a policy could be the basis of a Title VII disparate-impact claim, recognizing that a claim “can” exist does not mean that every employee in a company with that policy has a common claim. In a company of Wal-Mart’s size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way without some common direction. Respondents’ attempt to show such direction by means of statistical and anecdotal evidence falls well short. Pp. 14–20.

2. Respondents’ backpay claims were improperly certified under Rule 23(b)(2). Pp. 20–27.

(a) Claims for monetary relief may not be certified under Rule 23(b)(2), at least where the monetary relief is not incidental to the requested injunctive or declaratory relief. It is unnecessary to decide whether monetary claims can ever be certified under the Rule be-cause, at a minimum, claims for individualized relief, like backpay, are excluded. Rule 23(b)(2) applies only when a single, indivisible remedy would provide relief to each class member. The Rule’s history and structure indicate that individualized monetary claims be-long instead in Rule 23(b)(3), with its procedural protections of pre-dominance, superiority, mandatory notice, and the right to opt out. Pp. 20–23.

(b)

Respondents nonetheless argue that their backpay claims were appropriately certified under Rule 23(b)(2) because those claims do not “predominate” over their injunctive and declaratory relief re-quests. That interpretation has no basis in the Rule’s text and does obvious violence to the Rule’s structural features. The mere “pre-dominance” of a proper (b)(2) injunctive claim does nothing to justify eliminating Rule 23(b)(3)’s procedural protections, and creates incentives for class representatives to place at risk potentially valid monetary relief claims. Moreover, a district court would have to reevaluate the roster of class members continuously to excise those who leave their employment and become ineligible for classwide injunctive or declaratory relief. By contrast, in a properly certified (b)(3) class action for backpay, it would be irrelevant whether the plaintiffs are still employed at Wal-Mart. It follows that backpay claims should not be certified under Rule 23(b)(2). Pp. 23–26.

(c)

It is unnecessary to decide whether there are any forms of “incidental” monetary relief that are consistent with the above interpretation of Rule 23(b)(2) and the Due Process Clause because respondents’ backpay claims are not incidental to their requested injunction. Wal-Mart is entitled to individualized determinations of each employee’s eligibility for backpay. Once a plaintiff establishes a pattern or practice of discrimination, a district court must usually conduct “additional proceedings . . . to determine the scope of individual relief.” Teamsters v. United States, 431 U. S. 324, 361. The company can then raise individual affirmative defenses and demonstrate that its action was lawful. Id., at 362. The Ninth Circuit erred in trying to replace such proceedings with Trial by Formula. Because Rule 23 cannot be interpreted to “abridge, enlarge or modify any substantive right,” 28U. S. C. §2072(b), a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. Pp. 26–27.

603 F. 3d 571, reversed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined, and in which GINS-BURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined as to Parts I and III. GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

http://www.supremecourt.gov/opinions/10pdf/10-277.pdf

“It is not enough to do your best; you must know what to do – and then do your best.” – W. Edwards Deming, Management Consultant and Educator

This issue discusses:

• Editor’s Column: High Touch
• Sprinkles v. Associated Indemnity Corp.
• So You Have a Great Idea…
• Employment Discrimination: The California Experience
• Take Note!
• Green HR
• Small Workplaces
• You Can Discriminate — But Only If You Have a BFOQ (Bona Fide Occupational Qualification)
• Abercrombie & Fitch Settles I-9 Paperwork Violations for More Than $1 Million
• Employment Law: Jury Awards, Trends, and Statistics
• Unwanted Transfer of Pregnant Employee Might Violate Title VII
• Acceding to Patient Racial Preferences Violates Title VII and ADA

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

Please click here to view the newsletter in PDF.

Editor’s Column: High Touch

I read some interesting research in Scientific American on how touch affects how people feel. It turns out that “everything we think is somehow tied to the physical experiences we have.” These experiences fall into these categories: Weight, texture, and hardness. For example, weight itself implies that something is more important. People who simply held a heavier clipboard rated job candidates as better and more serious about a job. Similarly, people who handle rough textures before observing a social scene rated it as more harsh; and even sitting on a hard chair made people less likely to veer from an original offer in negotiating with a car dealer. Across the board, there was about a 25% difference in how people behaved when given something heavy, rough, or hard.

The researchers concluded that understanding these tactile effects presumably would give you the upper hand. So, can you use this understanding in management or sales? To begin with, if I wanted to have a prospect take something seriously, I would provide them with something heavy to hold on to or think about. I would have them sit in comfortable surroundings in a soft chair. Not all of this should come as a surprise. For example, I can remember shopping for a bed for the guest room. The salesman asked me if I wanted the guest to stay for two days, two weeks, or two months. He would sell me a bed with the right texture to assist in that outcome. So, think to yourself, “How can I make this heavier or lighter, rougher or smoother, harder or softer, depending on what I need under the circumstances?” If I’m trying to train a Marine, it’s going to be heavy, rough, and hard. If I’m coddling a baby, it’s going to be light, smooth, and soft.

We can create metaphors that will affect the way that people think about things. For example, if in your discussion, you say something like, “What kind of criteria do you use when you make a serious decision such as buying a car?” The prospect will take the situation more seriously. Other times you might want to talk about a smooth transition or a soft landing. Finally, studying neuro-linguistic programming (NLP) you learn that people are primarily auditory, visual, or kinesthetic. So, you might say something like, “Can you see the heaviness of the situation?” “Can you feel the weight of the situation?” or “Can you hear the gravity of the situation?” (Depending on which modality the person favors). Remember this: How we use language has a significant impact on how we are perceived and how we influence others.

Sprinkles v. Associated Indemnity Corp.

This is an important case for Workers’ Comp insurance brokers to understand. To make a long story short, the plaintiffs sued after Bibinz, an uninsured and undocumented worker with a lengthy criminal record, drove his vehicle negligently while under the influence of drugs, causing the death of a driver in another vehicle. The plaintiff alleged that Bibinz was acting as an agent of his employer, the Sinco property management company, because he was using his vehicle to drive to work, which required him to visit various properties managed by the company.

At the time of the accident, Sinco carried a Commercial Auto policy issued by General Insurance with a million-dollar limit, an Umbrella and Excess policy from Fireman’s Fund with a million-dollar limit, and a CGL policy issued by Fireman’s with a million-dollar limit. Plaintiffs partially settled the Sinco action, with General paying its million-dollar primary limit and Fireman’s Fund paying its excess million-dollar limit. However, the insurer denied coverage under the CGL policy.

The arbitrator awarded $27 million, finding that at the time of the accident, Bibinz was acting within the course and scope of his employment under the “required vehicle” exception under the “going and coming rule” and that Sinco had been negligent in hiring and retaining him. This case focused on Fireman’s Fund under the CGL policy for bad faith in failing to defend the suit or indemnify against it. The definition of insured under the CGL policy included employees, “but only for acts within the scope of their employment while performing duties related to the conduct of your business.” Unfortunately for the plaintiffs, the court did not buy the theoretical possibility that the actions of an employee might be within the actions of the course and scope of employment, but “not related” to the conduct of the business. It ruled that Bibinz’s use of his own vehicle required by Sinco was within the scope and course of the business, and that driving that vehicle to work was at least performing a duty “related” to the conduct of the business. Thus, he was an insured under the policy – as a result, the automobile exception applied.

So You Have a Great Idea…

You just might be lucky enough to hire or manage employees that want to help improve the company. How you handle their ideas greatly impacts the future of your relationship. Mishandle this conversation, and you’ll pay the price. Here are some approaches that won’t burn bridges:

• Sounds interesting; keep talking so I understand this better.
• Where did this idea take root? Anyone else involved? What got you to this point?
• How will this help the company meet its vision, mission, or goals?
• What assumptions are you making and how do they factor into your idea?
• Why are you so excited about it?
• If it worked the way you envision, what would it look like?
• If we were to pursue this idea further, what would be the next step?
• What needs to change if this is going to work?
• What impact can it have on the bottom line?
• I like it. How would you like to fill out this Great Idea Form so we can study the idea further?

Employment Discrimination: The California Experience

The DFEH has released a summary of the cases filed in 2008-2009. The breakout of claims is similar to those filed nationwide. As you can see, disability and retaliation claims are the two biggest areas of concern. The second tier of exposures includes age, race, and sexual harassment claims. Here’s the question: No matter where you are, are you using HR That Works proactively to help avoid these claims?

Take Note!

Medical Examinations. Requiring an employee to undergo a fitness for duty examination (FFDE) does not violate the Americans with Disabilities Act, if the employer has an objective, legitimate basis to doubt the employee’s ability to perform his or her duties. Under the ADA, an employer may require an employee to undergo medical testing only where the testing is job related and consistent with business necessity. In Brownfield v. City of Yakima, a police officer argued that the City violated the ADA by requiring an FFDE, after he had engaged in a number of emotional outbursts, without showing that his job performance had actually suffered due to any health problems. The Court disagreed, finding that requiring a “preemptive” medical examination may be permissible under the ADA. It cautioned, however, that the standard for establishing the validity of such a requirement is quite high – the employee’s behavior cannot be “merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions.” 

The court ruled that The City of Yakima had a legitimate basis to doubt the plaintiff’s ability to perform the duties of a police officer. In coming to its conclusion, it used these words, which everyone should remember:

“We agree … that prophylactic psychological examinations can sometimes satisfy the business necessity standard, particularly when the employee is engaged in dangerous work. However, we must be keen to guard against the potential for employer abuse of such exams … Employers are prohibited from using medical exams as a pretext to harass employees or to fish for non-work-related issues and the attendant ‘unwanted exposure of the employee’s disability’ and the stigma it may carry … An employee’s behavior cannot be merely annoying or ineffective to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions.”

This case reassures employers that sending an employee for a fitness for duty examination will not violate the ADA if the employer has a reasonable belief that the employee is not capable of performing his job. Of course, the ADA’s requirement that a medical examination be consistent with business necessity is an objective one and the employer bears the burden of demonstrating this business necessity.

Religious Accommodation. The U.S. Court of Appeals for the Third Circuit held that a prison that prohibited female Muslim employees from wearing religious head coverings called khimars did not violate Title VII’s religious accommodation obligations. Under Title VII, an employer must provide accommodation for an employee’s religious beliefs and needs unless the accommodation would pose an undue burden to the employer. In EEOC v. The GEO Group, Inc., the Court credited the employer’s identified safety and security risks associated with the wearing of head coverings in prison: Smuggling of contraband, interference with identification of the wearer, and the potential use of the head covering as a strangulation weapon. This case demonstrates that an employer’s position in refusing a religious accommodation is stronger where significant safety concerns exist.

NLRB Decisions. The Supreme Court ruled that the National Labor Relations Board was not authorized to issue decisions during the more than two years that three of its five seats were vacant. The NLRB has compiled a list of the 595 decisions issued by the two-member Board. Most of the cases were already closed under the Board processes or are at some point in compliance proceedings; the remaining open cases were returned to the Board for reconsideration by at least three members. The Board has just begun to issue rulings on those cases.

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

Green HR

I’m an environmentalist. I’ve even hugged a few trees, but I don’t claim that they’ve talked back to me. I’ve also sat on environmental non-profit boards and ran a non-profit environmental agency. That was the three-year environmental phase of my career. Then I had to start making money again. But during this period I learned that companies can have a significant impact on the environment — and that HR and a volunteer team can spearhead this effort. Here are some basic guidelines that you can consider:

• Consider telecommuting – Do employees really have to spend the time, energy, and money to drive to work every day or can they be more effective working from home or from remote offices?
• Go paperless – I’m impressed by how many insurance agencies I work with have gone paperless.
• Encourage carpooling and public transportation – You might even help pay for some of the gas.
• Recycle – Paper, glass, and plastic should all be recycled. Take one good look at a local shoreline and you’ll understand why.
• Beware of indoor air pollution – For many people, the building they work in has more air pollution than any other environment. Indoor air inspections can help prevent sick days and attendant non-productivity.
• Turn off the lights and computers – I’m amazed at how many buildings keep the lights on at night, and you know the cleaning crew isn’t there any longer. Turn off your lights and turn off your computers.
• Think in terms of sustainability – Although this is a broader objective, focus on how you can manufacture things or deliver services in a way that produces less of an environmental impact. For example, I can do a webinar rather than flying across the country to speak.
• Finally, encourage employees to offer green suggestions – Perhaps it’s a rooftop garden, organic lunches, or supporting a local environmental cause.

Going green is important to all of us. Our current ways are unsustainable. Fact is, HR can make a green difference.

Small Workplaces

The June 2010 issue of INC Magazine featured an excellent article entitled “Learning from the Best,” by Lee Buchanan, which discusses strategies from the Top Small Company Workplaces winners and finalists. Here’s a brief summary of the article’s recommendations:

1. Engage in open-book management. No surprise there. I’ve been preaching this ever since Jack Stack published his Great Game of Business. We had an excellent Webinar on open-book management presented by Coach George from the Great Game of Business. According to the article, 83% of these companies practice open-book management. We do here at HR That Works. Everybody knows every number, including what everybody gets paid. When I do my Vistage presentations and ask CEOs using open-book management about their experience during the depth of the recession, they said they were first concerned that it would scare the employees and some would run off; however, just the opposite happened and employees were very glad to have open-book management. If you don’t have it, what are you waiting for?
2. Be flexible. 95% of companies offer flexible work arrangements.
3. Keep learning. In some of the companies, employees provide courses, usually in the evenings, to other employees. For example, the employees at Snag-a-Job teach Finance Fundamentals 101, HTML Basics, Peer Coaching, Texas Hold ‘Em, Goal Setting, and Women’s Self-Defense. If you’re an HR That Works member, there are more than 70 separate training videos that your regular members or management can watch at any time. Never stop learning.
4. Develop “Level 5” leaders. This term, coined by Jim Collins, talks about Level 5 leaders in terms of humility and inclusion.
5. Focus on orientation. See the Orientation Checklist on HR That Works. Make your orientation process more exciting, motivating, and presented in such a way that instantly builds rapport with new employees, as opposed to the opposite. I also encourage you to use the 60-Day New Employee Survey on HR That Works.
6. Add a little bit of sunshine. Companies help to lessen employees’ stress by allowing them to telecommute, and assist their parents or loved ones even if they’re not obligated to do so by the Family and Medical Leave Act.
7. Think inside out. The top companies focus on building a great culture which, in turn, can deliver great products and services – Southwest Airlines comes to mind. What are your company values? How do you define and celebrate them? How happy are your employees? In our Webinar on Happiness in the Workplace, the presenter offered a free analysis of your happiness level. Go to www.iopener.com/report to see how happy you are at work. I couldn’t be happier to say that my employees and I all scored very high on this index.
8. Help maintain employee health. Many small companies are entrepreneur driven. In my experience, if the CEO is a health nut, then so is the rest of the workplace. Savvy companies bring in ergonomics and wellness to help employees. Whether it’s concierge services, healthy lunches, or a wellness day off, there’s no substitute for a healthy workforce.
9. Finally, you can change a toxic workplace. In his book How to Turn Around a Toxic Workplace, Jeffrey Pfeiffer states that you can turn around a toxic workplace in four ways: 1) Let people make decisions, 2) Share the economic results either through profit-sharing or gain-sharing, 3) Share information, and 4) Invest in people. Sounds like a great summary of the article!

You Can Discriminate — But Only If You Have a BFOQ (Bona Fide Occupational Qualification)

Employers often believe that they need a certain type of person to do a certain job because of physical requirements, client demands, privacy reasons, and tradition. Understand this: Any such discrimination will come under judicial scrutiny unless there’s a high level of correlation between gender, race, or nationality and the ability to perform job functions. For example, a 9th Circuit opinion held that a women’s correctional facility could not limit its correctional employees to females in an effort to reduce sexual abuse in the environment. On the other hand, it’s hard to argue that an employer doesn’t have the right to hire whom they want to as their next bikini model.

Bottom Line:Be prepared to prove your BFOQ, as well as any efforts you’ve made to mitigate the situation. For example, if employees have to lift a 200-pound box once a day, and this imposes a disparate impact on women, a reasonable alternative would be to not have anybody without the ability to lift those boxes. Our members continue to be plagued with questions such as, “Can I only hire Chinese waiters for my Chinese restaurant?” (Answer: No. As another article in this newsletter stated, customer preference cannot override discrimination laws.) “Can I hire only English-speaking employees at my hotel, even if they have limited customer interaction?” (Answer: Probably not.)

If you’re not sure, contact the HR That Works Hotline.

Abercrombie & Fitch Settles I-9 Paperwork Violations for More Than $1 Million

At the end of September 2010 – and with little fanfare – the Department of Homeland Security and Immigration and Customs Enforcement (ICE) announced settlement of an enforcement action against Abercrombie & Fitch, the nationwide clothing retailer. This settlement is remarkable for several reasons.

The settlement amount is $1,047,110, which is an enormous monetary penalty in today’s economy. More shocking is the fact that this penalty is for paperwork violations only. There are no allegations that Abercrombie & Fitch employed illegal workers or otherwise violated immigration law. Instead, this penalty is solely for improper completion of I-9 forms.

The settlement results from a compliance audit initiated in November 2008. It’s common for ICE to take two years or more to conclude an I-9 paperwork audit.

The second surprise about this settlement is that the I-9 inspection involved the clothing retailer’s Michigan stores, and is apparently not the result of a nationwide compliance audit. The ICE press release states that the company “was fully cooperative during the investigation and no instances of the knowing hire of unauthorized aliens were discovered.” If that is the case, the agreed-upon penalty either reflects an enormous number of violations or very severe fines per violation.

Third, the violations uncovered during the inspection involved “numerous technology-related deficiencies in Abercrombie & Fitch’s electronic I-9 verification system.” This suggests that the company’s I-9 software vendor was negligent and failed to confirm that its software system achieved proper I-9 compliance or that the company was poorly trained in implementing and administering the electronic I-9 compliance program. In either case, this settlement serves as a wake-up call to all employers using electronic verification systems: Make certain the system ensures proper I-9 compliance and that you are using it correctly.

Even employers that don’t use electronic I-9 compliance systems should note the heavy fines imposed because of this investigation. The ICE press release confirms that the agency has implemented a new, comprehensive strategy to audit and investigate employers, and that this effort has resulted in a record number of civil and criminal penalties against employers. Now is the time to ensure that your compliance will survive an ICE investigation!

To obtain the free 14-step self-audit checklist, see this month’s Form of the Month.

Article courtesy of Worklaw® Network firm Elarbee Thompson (www.elarbeethompson.com).

Employment Law: Jury Awards, Trends, and Statistics

Every year, I read the Jury Award, Trends, and Statistics report on employment law published by Jury Verdict Research. I used this report during my litigation career to help position cases for settlement purposes.

Because it takes a long time to gather these statistics, the report doesn’t appear until October of the following year. The good news: JVR reported that the median compensatory award in employment practices cases dropped from $285,000 in 2008 to $253,000 in 2009 (the second highest level ever recorded). There has been an upward trend in EPL verdicts since 2003. Although the median award was $253,000, the mean award came in at $753,332. Here are some other statistics from the report:

• The highest average EPL award between 2003 and 2009 was for retaliation, coming in at $245,500. The second highest average verdict was for wrongful termination at $232,500.
• Approximately 37% of the cases result in a verdict between $100,000 and $500,000.
• In 2009, 24% of the cases had a jury verdict of $1 million or more.
• The highest average compensatory verdicts came against government entities, with manufacturing/industrial companies coming in second place. Transportation firms had the lowest average verdict.
• Between 2003 and 2009, the most common claims for discrimination involved sex (35%), race (25%), disability (15%), age (13%), and other (12%). Age and disability cases had the highest median awards, both more than $250,000. Sex and race cases averaged approximately $200,000.
• As has been the case every year, state court verdicts are dramatically higher than those in federal courts. This is one reason why plaintiffs’ attorneys prefer to try their cases in state court.
• When it comes to the recovery probability for employment practices liability, employers received a break: Employees won 58% of their cases, down from 60% in 2008.

You can order a copy of this report from Jury Verdict Research for approximately $40 by going to www.lrp.com or calling (800) 341-7874.

Unwanted Transfer of Pregnant Employee Might Violate Title VII and ADA

An employer who assumes that a pregnant employee cannot perform her usual job duties or work in her usual work environment may be liable for discrimination under the Pregnancy Discrimination Act (PDA), which is part of Title VII, and the Americans with Disabilities Act (ADA).

Facts of the Case: In Spees v. James Marine, Inc., a female welder, who had previously miscarried several times, reported to her manager that she was pregnant. He expressed concern about her being around chemicals and welding smoke, and about her climbing for certain projects. He required that she obtain a note from her doctor to determine what she could and could not do. In the meantime, her manager had already decided to move her to a light duty job. When the employee presented her doctor’s note, which had no physical limitations, the manager required her to obtain a revised note that limited her to light duty. She was then transferred to a less desirable tool room job and a nighttime shift, which the employee, a single mother, found problematic for child-care purposes. She was terminated when her doctor placed her on complete bed rest and she had no more leave available.

The employee sued, alleging that the transfer and termination violated both the PDA and the ADA. The trial court granted summary judgment for the employer and dismissed the employee’s claims, finding that the transfer at the same rate of pay and benefits was not an adverse employment action in violation of employment discrimination laws, and that the employer terminated her based on her inability to work due to doctor-ordered bed rest rather than any illegal motive.

The Court’s Ruling: On appeal, the U.S. Court of Appeals for the 6th Circuit affirmed the District Court’s grant of summary judgment on the termination claims, but reversed the ruling on the transfer claims. The Court found that the transfer to the tool room job constituted an adverse employment action, because it involved a more inconvenient shift, in a position that required less training and skills and was less challenging for the employee. The Court further found that the employee’s pregnancy could certainly have been a factor in the transfer decision, in violation of the PDA, because the employer had decided to transfer the employee before receiving any information from her doctor, and then required the employee to obtain a revised note from the doctor to support the transfer.

In addition, the Court found that the transfer could have been a violation of the ADA. To bring a claim under the ADA, an employee must show that she has a disability (i.e. a substantial limitation on a major life activity), has a history of a disability, or is regarded as being disabled. The Court acknowledged that a normal pregnancy is not a disability under the ADA, but found that the employer regarded the employee as being impaired in the major life activity of working, due to her history of pregnancy problems. The Court noted that the EEOC’s interpretative guidelines state that “Complications resulting from pregnancy . . . are impairments.”

Lessons Learned: This case reminds employers to be careful of making judgments intended to be in the best interests of an employee’s health, especially where such judgments are either unwanted by the employee or unsupported by independent medical opinion. Moreover, the case serves as a warning to employers that, particularly in light of the expanded protections under the amended ADA, pregnancy-related conditions may be considered disabilities.

Acceding to Patient Racial Preferences Violates Title VII

A nursing home’s acquiescence to a patient’s refusal to receive treatment from black healthcare providers violated Title VII’s prohibition of race discrimination.

Facts of the Case: In Chaney v. Plainfield Healthcare Center, a nursing home resident did not want to be cared for by any black employees. In compliance with the resident’s request, the nursing home informed a black certified nursing assistant (CNA) in writing each day that “no black” assistants should enter the resident’s room or provide care for her. The CNA’s co-workers also used racial epithets towards her, although this eventually stopped after the CNA complained to her manager. The nursing home terminated the CNA after only three months of employment, allegedly for using profanity in front of a resident.

The CNA sued the nursing home for subjecting her to a hostile work environment and terminating her because of her race. The trial court granted summary judgment for the nursing home and dismissed her claims. The court found no hostile environment had existed because the nursing home had addressed her complaints about the racial epithets and because the nursing home’s policy of forbidding black CNAs from caring for certain patients was based on its good faith belief that state and federal patient rights laws permitted patients to choose their healthcare providers. The court further found that the CNA’s termination was unrelated to her race.

The Court’s Ruling: On appeal, the U.S. Court of Appeals for the Seventh Circuit reversed the trial court’s decision. The Court found that the nursing home “acted to foster and engender a racially-charged environment” through its race-specific patient preference policy, which reminded black employees on a daily basis of work restrictions that were expressly not shared by white employees. The Court rejected the nursing home’s argument that the policy was required to comply with federal and state law, finding that the laws, while requiring patient access to healthcare providers of their choice (e.g., a patient may hire a white aide at her own expense), do not require employers to institute race-based work practices. As the Court observed, “It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.” The existence of the policy, along with the use of the racial epithets, constituted a racially hostile environment. The Court also determined that there was evidence to suggest that the stated reason for the CNA’s termination was a pretext for race discrimination.

Lessons Learned: Employers cannot accede to race-based preferences of their customers or clients. When faced with such preferences, as this Court suggested, an employer should inform customers and clients of its nondiscrimination policy, attempt to reform customer behavior, and assign staff based on race-neutral criteria that minimize the risk of conflict. For example, an employer could advise its employees that they can seek protection from racially harassing customers. By doing so, the employer “would not be imposing an unwanted, race-conscious work limitation on its black employees; rather it would be allowing all employees to work in a race-neutral, non-harassing work environment, as is commonly expected of employers.”

Articles courtesy of Shawe Rosenthal (www.shawe.com).

Form of the Month

Guidelines for Conducting an I-9 Audit (PDF) – Use this 14-point self-auditing checklist to make sure that you’re complying with I-9 employee immigration status verification system.

Podcast

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

Podcast: Play in new window | Download