September 2008 Archives

What Is the WARN Act?

Posted by Molly DiBiancaOn September 30, 2008In: Reduction in Force (RIF), WARN Act

Email This Post | Print this Post

Layoffs are happening. And layoffs have lots of implications-morale implications, business and financial implications, and legal implications.  Any time an employer is considering separating one or more employee for lack of work, a whole host of legal considerations are triggered. For employers with at least 100 full-time employees at a job site, one of the most significant is the Worker Adjustment and Retraining Notification (WARN) Act.  image

In short, the WARN Act requires employers to give advance notice to employees who will be affected by a plant closing.  Generally, 60 days' written notice is required before closing a plant or implementing a mass layoff.  Failure to comply with the Act can result in serious liability, including back pay and benefits for each affected employee for every day that the notice was not provided, for up to 60 days.  This number can quickly add up to millions of dollars.

Who Is Entitled to Notice?

WARN notice must be provided to either affected workers or their representatives (e.g., a labor union); to the State dislocated worker unit; and to the appropriate unit of local government.

Which Employers Are Covered?

Private-sector profit and non-profit employers who have 100 or more employees are covered.   In determining whether the minimum number of employees has been met, only those who have worked at least 6 months in the last 12 months and who work an average of at least 20 hours per week should be included. 

When Must Notice Be Given?

With three exceptions, notice must be timed to reach the required parties at least 60 days before a closing or layoff. When the individual employment separations for a closing or layoff occur on more than one day, the notices are due to the representative(s), State dislocated worker unit and local government at least 60 days before each separation. If the workers are not represented, each worker's notice is due at least 60 days before that worker's separation.

The exceptions to 60-day notice are:

(1) Faltering company. This exception, to be narrowly construed, covers situations where a company has sought new capital or business in order to stay open and where giving notice would ruin the opportunity to get the new capital or business, and applies only to plant closings;

(2) unforeseeable business circumstances. This exception applies to closings and layoffs that are caused by business circumstances that were not reasonably foreseeable at the time notice would otherwise have been required; and

(3) Natural disaster. This applies where a closing or layoff is the direct result of a natural disaster, such as a flood, earthquake, drought or storm.

If an employer provides less than 60 days advance notice of a closing or layoff and relies on one of these three exceptions, the employer bears the burden of proof that the conditions for the exception have been met. The employer also must give as much notice as is practicable. When the notices are given, they must include a brief statement of the reason for reducing the notice period in addition to the items required in notices.

What Must the Notice Include?

Notice must be in writing but no particular form is required.  Notice must be specific. 

What Triggers Notice?

Plant Closing:  A covered employer must give notice if an employment site (or one or more facilities units within an employment site) will be shut down, which will result in an employment loss for 50 or more employees during any 30-day period. 

Mass Layoff: A covered employer must give notice if there is to be a mass layoff that does not result from a plant closing, but will result in an employment loss at the employment site during any 30-day period for 500 or more employees, or for 50-499 employees if they make up at least 33% of the employer's active workforce.

Cumulative Layoff:  Even if the first two events do not occur, WARN Act provides still for a third circumstance where notice is required.  If, during a 30-day period, the number of employment losses for 2 or more groups of workers, each of which is less than the minimum number needed to trigger notice, would reach the minimum threshold if they were combined during any 90-day period.  Job losses within any 90-day period will count together cumulatively.

What Is An Employment Loss?

The term "employment loss" means:

(1) An employment termination, other than a discharge for cause, voluntary departure, or retirement;

(2) a layoff exceeding 6 months; or

(3) a reduction in an employee's hours of work of more than 50% in each month of any 6-month period.

Not included as an employment loss is an employee who refuses a transfer to a different employment site within reasonable commuting distance; an employee who accepts a transfer outside this distance within 30 days after it is offered or within 30 days after the plant closing or mass layoff, whichever is later.  In both cases, the transfer offer must be made before the closing or layoff, there must be no more than a 6-month break in employment, and the new job must not be deemed a constructive discharge.

Are There Any Exceptions?

An employer does not need to give notice if a plant closing is the closing of a temporary facility, or if the closing or mass layoff is the result of the completion of a particular project or undertaking. This exemption applies only if the workers were hired with the understanding that their employment was limited to the duration of the facility, project or undertaking. An employer cannot label an ongoing project "temporary" in order to evade its obligations under WARN.

An employer does not need to provide notice to strikers or to workers who are part of the bargaining unit(s) which are involved in the labor negotiations that led to a lockout when the strike or lockout is equivalent to a plant closing or mass layoff. Non-striking employees who experience an employment loss as a direct or indirect result of a strike and workers who are not part of the bargaining unit(s) which are involved in the labor negotiations that led to a lockout are still entitled to notice.

An employer does not need to give notice when permanently replacing a person who is an "economic striker" as defined under the NLRA.

How Long Is the Notice Period?

With three exceptions, notice must be timed to reach the required parties at least 60 days before a closing or layoff.

The exceptions to 60-day notice are:

(1) Faltering company. This exception, to be narrowly construed, covers situations where a company has sought new capital or business in order to stay open and where giving notice would ruin the opportunity to get the new capital or business, and applies only to plant closings;

(2) unforeseeable business circumstances. This exception applies to closings and layoffs that are caused by business circumstances that were not reasonably foreseeable at the time notice would otherwise have been required; and

(3) Natural disaster. This applies where a closing or layoff is the direct result of a natural disaster, such as a flood, earthquake, drought or storm.

Disrespectful Workplace Costs State $314k

Posted by Molly DiBiancaOn September 30, 2008In: EEOC Suits & Settlements, Harassment, Other (Title VII), Jerks at Work, Pregnancy (Title VII)

Email This Post | Print this Post

Workplace bullying is not unlawful. The U.S. Equal Employment Opportunity Commission (EEOC), is not stopped by that, though.  It has entered into a consent decree with the State of Oregon, ending a lawsuit involving workplace bullying.  The case, filed by the EEOC on behalf of Sheri Peters, a former juvenile court clerk, was filed under federal employment laws but, at its core, alleged egregious workplace bullying. eeoc_logo

Peters claimed that her former boss, the juvenile justice center manager, Linda Simonson, engaged in a variety of hostile conduct towards her subordinates. Peters claimed that, after working at the center for a month, she told Simonson that she was pregnant.  Simonson responded that she felt Peters had concealed her pregnancy to get hired and called Peters at her unborn child "garbage."  When Peters went to the hospital with a ruptured placenta in December 2004, she claimed, Simonson called her and chastised her for being not at work.

Court documents do not paint a pretty image for the center's management style.  Several current and former employees testified about the "bullying conduct" of Simonson who, as one witness described, “managed the department like an abusive parent.”  Another employee reported that she was harassed "relentlessly" by Simonson while out maternity leave.  Another claimed that, while she was pregnant, she was subject to “harassing and intimidating behavior” by Simsonson.  And one employee stated that Simonson was harassing, “cruel and vindictive."

As part of the settlement, Peters will receive $315,000. 

The real lesson here is not about pregnancy discrimination or even gender-based harassment.  The real lesson is about respectful conduct in the workplace.  Employers who fail to recognize that respect is an essential component of every job will eventually have to face the fallout of a distrusting workforce who feels they were thrown to the wolves by the organization that turned a blind eye to bullying and disrespectful treatment by management.

Job Qualification of the Week: Suck In Your [Pregnant] Belly

Posted by Molly DiBiancaOn September 29, 2008In: EEOC Suits & Settlements, Pregnancy (Title VII)

Email This Post | Print this Post

A pregnancy-discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), against a Pittsburgh-area plastic-surgery office has settled  The parties entered into a consent decree, which provides, in part, for payment of $75,000 to Erin Griggle, a former secretary at Premier Plastic Surgery, located in Cranberry, Pennsylvania. eeoc_logo

Although no discrimination suit is built on accusations of niceties and cordialities, this case has some particularly harsh-sounding allegations.  According to the complaint filed by the EEOC, a pregnant Ms. Griggle was told to "suck in her belly," because if she didn't, she would scare away patients who went to the facility to "look better."  She was later terminated because "she was not a good fit."  Then, when the center began the search for Griggle's replacement, the center's president was alleged to have asked if the candidate "had a uterus."

As is standard in EEOC consent decrees, the defendant expressly denied any wrongdoing so we'll likely never hear the center's complete side of the story.  But it does beg the question, do people really say things like this?  If you ever hear an employee say anything even close to the statements allegedly made in this case--don't delay.  Act swiftly and effectively to stop the conduct and make absolutely clear that it will not be tolerated under any circumstance.

15 Things that Jerks at Work Usually Do

Posted by Molly DiBiancaOn September 29, 2008In: Jerks at Work

Email This Post | Print this Post

Jerks at Work.  Nobody likes them.  Everybody knows them.  Jerks at Work are easy to identify--you know one when you see one.  But for managers who want to eradicate the problem of workplace bullying, it may be difficult to identify just what it is that indicates the employee is a legitimate jerk and not just someone having a really bad day.  jerks at work logo

To help those who want to make a difference and eliminate the Jerks at Work, here is a list of 15 common behaviors and offenses that indicate that there is a real problem.  

1.  Takes credit for the achievements of others.

2.  Repeats information learned in confidence.

3.  Talks about others in terms of stereotypes.

4.  Tells jokes that make others look stupid or unequal.

5.  Is adverse to any perceived change.

6.  Interrupts others while talking.

7.  Micromanages subordinates.

8.  Fails to keep commitments.

9.  Never volunteers to help coworkers.

10.  Gossips indiscriminately.

11.  Constantly seeks approval from others.

12.  Defensive in response to feedback.

13.  Inflexible with requests by others.

14.  Cannot be found when needed.

15. Places blame when unwarranted.

A Role Model for Wellness Programs: ING Direct

Posted by Molly DiBiancaOn September 25, 2008In: Wellness, Health, and Safety

Email This Post | Print this Post

Delaware is one of several states that have implemented wellness and prevention programs.  State employee wellness programs are often launched as pilots for broader health initiatives and as examples of best practices that it is hoped the private sector will follow.  image

DelaWELL, Delaware’s pilot wellness program, was designed to set an example for private employers to follow, as well as to demonstrate the possible ROI.  Delaware employer, ING DIRECT, is unusual in that it adopted its own wellness program shortly after Delaware first began its wellness program. ING DIRECT saw so much intrinsic value in the wellness philosophy that it began to implement a full-fledged wellness campaign long before the state program could return any substantial ROI data.

In this multi-part post, we’ll look at the ING DIRECT program as a model for other businesses who are considering making the wellness investment.  In this post, we will focus on guiding principles that have directed the program’s priorities and initiatives, the real-world data that was used in assessing the potential value of the program, and goals the program is hoped will obtain.

Next, we’ll look to the various facets of the wellness program as it has come to be developed, an assessment of those initiatives, and the direction the program can be expected to take over the next several years. Undoubtedly, ING DIRECT has taken its own distinct path in implementing its deeply rooted wellness philosophy. As a frontrunner in the area of workplace wellness, other state employers can gain valuable insight from the ING DIRECT example.

ING DIRECT’s Arrival in America

ING DIRECT was born in Canada in 1997, a subsidiary of Dutch giant, ING Group. In 2000, several executives came to the U.S. to replicate the Internet bank’s Canadian success. By late 2003, ING DIRECT USA had acquired 1.5 million customers and had grown to employee more than 800 people. Realizing the potential implications of such sudden growth, CEO Arkadi Kuhlmann directed the company’s efforts towards creating a culture that valued work-life balance.

Kuhlmann’s strategy was influenced by The Power of Full Engagement, by Jim Loehr, Ed.D. In his best-selling book, Loehr advocates that individuals must manage their energy--not their time--in order to reach their full potential. Only by focusing on sustained performance can individuals maximize their health, happiness, and work-life balance. For Kuhlmann, the connection between a healthy workforce and a productive workforce was an easy one to make and he set off to create a working environment that would support this connection.

The Doctor Is In

In 2004, Kuhlmann approached Don Baag, M.D., with his ideas. Kuhlmann described his vision--to have a doctor-in-residence on the ING DIRECT campus--not just to tend to the daily healthcare needs of employees, but to address the overall health of the corporate culture. And just how was Baag to implement such an esoteric strategy? With a wellness program.

Intrigued by the opportunity to directly impact an entire workforce on a permanent level, Baag agreed. Kuhlmann offered no instruction or specific strategy--just to create a department that’s entire focus would be on the well-being of employees in whatever format Baag saw fit. Baag had never before developed a corporate wellness program. In fact, he’d never worked in a company that had one. But the absence of prior experience is not out of place in the ING DIRECT culture, which has found great success by innovating new experiences instead of copying the experiences of others.

To Be Continued . . . But, for now, here are some earlier Employer Wellness posts:

  1. State Employees Will Go From Fat to Fit--Or Else
  2. Health vs. Privacy: Employers Continue to Juggle Both
  3. What Does It Take to Be "Best Place to Work"?
  4. Three Days of the Bar Exam and the Next Great Wellness Benefit
  5. These Pumps Were Made for Walkin'
  6. Are Employers Getting Pushy About Weight Loss?
  7. Employers Should Know that Cancer Screening Saves Lives . . . And Money
  8. More Employers Giving the Gift of Wellness--via gift cards
  9. Employee Blogs as Part of Corporate Wellness Programs?
  10. Employees, Prepare to Get Healthy, Like It Or Not!
  11. DelaWELL, Delaware’s Health-Management Program for Public Sector Employees, Wins National NASPE Award
  12. DOL Offers Compliance Checklist for Wellness Programs
  13. Are Today's Wellness Programs Running Out of Steam?

More on the Real Impact of the ADA Amendments Act

Posted by Molly DiBiancaOn September 25, 2008In: Disabilities (ADA)

Email This Post | Print this Post

The ADA Amendments Act (ADAAA), are now law.  The Act expands the definition of "disability" under the Americans With Disabilities Act. (ADA)  This is a reversal from the courts' recent inclination to narrowly interpret the ADA's coverage.  That trend, which has been positive for employers, began with a string of U.S. Supreme Court decisions starting in 1999. It seems, though, that the trend will end on January 1, 2009, when the ADAAA takes effect.

image

Under the ADAAA, the definition of “disability” will be expanded with the addition of several new rules of construction, including:

  • the term must be construed in favor of broad coverage of individuals; 
  • an impairment need only substantially limit one major life activity; 
  • episodic impairments or impairments that are in remission are considered disabilities, so long as the impairment would substantially limit a major life activity when active; and 
  • the availability of mitigation measures, such as medication or treatment, is no longer relevant to the determination of whether an impairment substantially limits a major life activity.

The ADAAA also provides an extensive list of the tasks that are to be considered “major life activities.”  The list includes physical tasks such as walking, standing, and lifting; mental tasks such as learning, reading, and thinking; and even the operation of major bodily functions, such as immune system functions, cell growth, and reproductive functions.

Finally,the ADAAA eliminates a previously available defense in "regarded-as" cases.  Prior to the amendments, an employer could defend itself in a "regarded-as" case on the ground that the employee was regarded as having an impairment but not an impairment that qualified as a disability.  In other words, if an employee was terminated because his supervisor regarded him as having strep throat, there would be no ADA violation because the employee was not regarded as having a disability (assuming strep throat wouldn't qualify). 

If you want to learn more about the ADAAA and its potential impact, HR Hero will be hosting an audioconference by Jonathon R. Mook on Thursday, October 30, 2008.  Registration information is available on HRhero.com at the seminar's web page, ADA Amendments Act Takes Effect Jan. 1.

Office Workers Up In Arms Over the Stolen-Lunch Crisis

Posted by Molly DiBiancaOn September 24, 2008In: Just for Fun

Email This Post | Print this Post

Sound the Cubicle Battle Cry!  You've been victimized once again by the Refrigerator Raider.  After you waited patiently through the tedious morning hours, the noon hour has at long last arrived.  As you speed-walk to the min-cafe, your mouth begins to water at the thought of the heavenly goodness you're about to enjoy in the form of a turkey sandwich, cheese and mustard, on rye toast.  Heaven. 

But, your heat rate quickens as you push through the plastic grocery-store bag that contains a peach-flavored La Yogurt, or a brown bag that is home to a lone single-wrapped slice of American cheese and a can of Diet Coke.  Where is your lunch?  The sandwich that you made with your own two hands--even taking the time to toast the bread.  For the love of God, is there no mercy? 

No.  There is no mercy when the office thief attacks the fridge and your lunch becomes a fallen victim.

If your lunch has ever been pilfered by a criminally inclined coworker, this is a story for you.  Over the summer, we learned that office workers across the country have had their brown bags burglarized by a stealthy sneak of an employee.  (See Just Put Down the Brown Bag and Slowly Step Away From the Lunch).  According to one survey, workers almost unanimously agree that the lunch-box thief is the lowest of the low.

Well here is a solution--a way to fight back!  Courtesy of Lifehacker, an Anti-Theft Lunch Bag to deter sandwich thieves in corporate office parks across the country.   Instead of trying to prevent them from stealing your coveted mid-day meal, instead, convince the devilish office gremlins that they don't really want to steal your lunch. 

It's brilliant, isn't it?  Rise up, office mates!  Raise up your plastic cutlery in unison!  Demand better!  Demand that your turkey-on-rye never again be snatched from its home on the middle shelf! 

image

Telecommuting Is a Way to Work More--Not to Drive Less

Posted by Molly DiBiancaOn September 24, 2008In: Alternative Work Schedules, Telecommuting

Email This Post | Print this Post

Alternative schedules, such as "4/10s" (a/k/a four-day workweeks), have been hot topics for the past several months.  I know I've put more than my two cents worth of commentary out there recently.  So why is it that only a tiny percentage of the country's employees report having access to such flex-time initiatives?  j0400948

In a recent Gallup Poll, only 12% of workers say that their employers encouraged its employees to work from home one or more workdays per week.  And only 16% say that the idea of the 4-day workweek has been supported by management.  Yes, these are increases from alternative schedules reported in the past but they can hardly be considered to be representative of the general population. 

What hasn't increased, though, is telecommuting.  There has been 0% increase in the number of respondents who say they telecommute at all.  Well, no, that's inaccurate--that number has actually fallen 2%, down to 30% today as compared to 32% in 2006. 

What I found most important was the finding that employees who reported that they have telecommuted say that they do so as a way to put in extra hours on nights or on weekends.  Telecommuting, it seems, has no correlation to a reduced cost of driving. 

Free Speech Debate Over Student's Anti-Obama Tee-Shirt

Posted by Michael P. StaffordOn September 23, 2008In: Public Sector

Email This Post | Print this Post

By Michael P. Stafford, Esq.

The free-speech rights of a student is the topic of the day in Colorado, where a 5th grader has been suspended for wearing a tee-shirt emblazoned with the slogan "Obama is a terrorist’s best friend."  The student's family claims that his First Amendment right to free speech is being trampled. Conspicuously absent from news coverage of this developing story is any detailed description of the tee-shirt causing "substantial disruption" to the school.

image 

Did the school administration make the correct decision in suspending this youngster?


Under well-established Supreme Court precedent, public school administrators may regulate student speech protected by the First Amendment only in three circumstances: (1) when the speech is substantially disruptive; (2) when the speech bears the imprimatur of the school (such as in a school newspaper or yearbook), or; (3) when the speech is lewd or plainly offensive.  In particular, under Tinker v. Des Moines,  393 U.S. 503 (1969), student speech may be regulated only if the school has a well-founded expectation that the speech will cause substantial disruption of the school's operations or interference with the rights of others. The expectation of disruption must be a specific and significant fear of disruption, not just some remote apprehension of disturbance.  In this regard, speech is not disruptive merely because it causes offense or hurt feelings in listeners.

Moreover, any regulation of student speech must also be “content neutral.”  In Tinker, which involved students wearing black armbands to school to protest the Vietnam war, the Supreme Court observed that the school had singled out the anti-war black armbands for prohibition but had not forbidden other controversial or political symbols.  As many courts have noted in a variety of contexts, restrictions on speech because of its message or content are presumed to be unconstitutional. 

Here, the constitutionality of the school's action in suspending the student will likely turn on whether the tee-shirt caused, or was likely to cause, a substantial disruption to the educational environment.  Any attorney representing the student will also look closely at the other types of political apparel students have worn in the past without discipline by the school administration to discern whether the student has been discriminated against based on his viewpoint. 

Gen Y Demands Employers Open the Checkbook for Technology Requests

Posted by Molly DiBiancaOn September 22, 2008In: Generations: Boomers, Xers, and Millennials, Hiring, Privacy In the Workplace

Email This Post | Print this Post

Attention, Employers.  Your Millennial workforce has an important message for you--one that you'll need to get loud and clear if you want to remain competitive in attracting the massive wave of talent currently graduating from college.  So what's the message? 

Well, what's important is not so much the message, really, but how they're going to be communicating it.  The message is going to be coming through viagen y
Wikis, Blogs, and Social Networking sites.  Instant Messaging and Text Messaging will also be the way your future workforce will communicate its needs and demands through the chain of command.  And those employers who aren't equipped to deal with this change to its infrastructure will be left behind.   

The reality is, today's newest employees, known as "Generation Y", are known for their need for speed--on the information highway.  They're about as comfortable as one can get with the idea of technology.  They embrace--instead of reject--the idea of rapid technology changes.  In fact, technology is such an integral part of the daily lives of Millennials that you shouldn't be surprised when you start to get questions about your organization's technology from recruits.

As reported in PC World, Gen Y employees have a laundry list of technology-related demands that must be met in order to have some chance at job satisfaction.  Employers who don't offer virtual learning, internal social networks, or are unwilling to spend the money and time needed to get these essentials will be unable to recruit and retain the best and the brightest young employees

EEOC Files Suit Alleging School Fired Teacher for Being HIV Positive

Posted by Molly DiBiancaOn September 22, 2008In: Disabilities (ADA), EEOC Suits & Settlements

Email This Post | Print this Post

The Americans With Disabilities Act (ADA), protects qualified individuals with a disability.  What is and is not a disability has been the subject of much discussion since the recent passage of the ADA Amendments Act of 2008.  The status of HIV as a recognized disability under the ADA, though, is not likely to be impacted--it has long been settled that a person with HIV/AIDS is protected by the statute.  In fact, we were reminded of this in July when we reported that the EEOC had filed suit against a weight-loss clinic in Pennsylvania, alleging that the clinic had wrongfully terminated an employee for having AIDSeeoc_logo

The EEOC has filed another AIDS-based lawsuit under the ADA.  This time, the suit is against the Chesapeake Academy, a private school in Anne Arundel, Maryland.  In its suit, the EEOC alleges that the second-grade teacher, Chauncey Stevenson, was terminated when he told the school he was infected with the disease.  The Baltimore Sun reports that Stevenson had been given good performance reviews for the years of his employment but his contract was not renewed for the 2006-2007 school year.  Stevenson then filed a Charge of Discrimination with the EEOC. When settlement negotiations with the school failed, the Commission filed suit on Stevenson's behalf. 

HR Summer School: FMLA 103 Intermittent Leave Requests

Posted by Molly DiBiancaOn September 22, 2008In: Family Medical Leave, HR Summer School

Email This Post | Print this Post

FMLA 103, part of the HR Summer School Back-to-Basic Series, addresses the very hot topic of intermittent leave.  Most HR professionals would agree that the FMLA's intermittent leave is one of the most difficult types of employment laws to administer.  In fact, a great number of the FMLA calls I get are, in some way, related to intermittent leave. 

For each question, I start my answer in the same way--with the basics.  Sometimes I find that, even the most knowledgeable HR professionals will skip the basics when there is a particularly unusual set of facts involved.  To make sure we don't overlook the forest for the trees, sometimes it's helpful to start at the beginning.  Slide1

What is Intermittent Leave?

The regulations prove that an eligible employee may take "intermittent leave" or go onto a "reduced leave schedule."

Intermittent leave is multiple instances of leave taken in separate blocks of time as opposed to one chunk of time, such as X days or weeks.  All of the instances of leave, though, are due to a single qualifying reason.

reduced leave schedule is a leave schedule that reduces an employee's
usual number of working hours per workweek, or hours per workday.  A
reduced leave schedule is a change in the employee's schedule for a
period of time, normally from full-time to part-time.

 Leave for Birth of a Child or Placement of a Child for Purposes of Adoption or Foster Care.  In this case, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. But remember that the employer does not have the discretion to "agree" if leave is need for an employee who has a serious health condition related to the birth of her child, or where the leave is related to her newborn's serious health condition. 

Planned Medical Treatments.  Intermittent leave may be taken for a serious health condition that requires periodic treatment by a health care provider.  In this instance, leave could be needed on an occasional basis for medical treatments, i.e., weekly kidney dialysis, or it can involve leave taken in blocks of days spread over a period of months, i.e., chemotherapy.  A common example of leave taken for planned medical treatments is a pregnant employee who takes intermittent leave for prenatal examinations. 

Recovery from Medical Conditions or Treatments.  Remember that time spent recovering from these treatments is also entitled to intermittent or reduced-scheduled leave.  For example, an employee may need a reduced schedule following radiation therapy until he develops the strength to work a full workweek.

Unanticipated Need for Leave.  An otherwise-FMLA-eligible pregnant employee suffering from morning sickness also would qualify for intermittent leave.  Pregnancy meets the standard for a serious medical condition for which the employee is under the care of a health care provider.

Immediate Family Members.  An eligible employee may take intermittent leave to care for an immediate family member who has, is being treated for, or is in recovery from a serious medical condition.  Just like leave for the employee himself, he may need unanticipated leave to care for his family member.  And remember that "caring for" is not limited to providing medical care in the strict sense.  Just providing psychological comfort, as we all know, can qualify as health care. 

Leave Where No Treatment Is Being Provided.  Intermittent or reduced schedule leave may be taken where the employee or the family member is incapacitated or unable to perform the essential functions of the job--even if not receiving treatment from a health care provider.  If an employee's parent, for example, has a terminal illness, the employee can take leave to "care," i.e., to provide comfort for, his parent, regardless of whether or not the parent is still being treated for the illness. 

Congress Passes ADA Amendments Act of 2008

Posted by Maribeth L. MinellaOn September 22, 2008In: Disabilities (ADA), Purely Legal

Email This Post | Print this Post

The Americans With Disabilities Act (ADA), is about to undergo a major change.  The changes are thanks to the Congress' passage of the ADA Amendments Act of 2008 (ADAAA) (S. 3406, H.R. 3195) (originally the ADA Restoration Act of 2007). The new law, which will likely take effect January 1, 2009 will broaden the definition of “disability” so that more physical and mental gavel and law booksimpairments are covered.

The Americans with Disabilities Act of 1990 (signed into law by President George H. W. Bush) was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Just as other civil rights laws prohibit entities from basing decisions on characteristics like race or sex, the ADA prevents employers from making decisions based on disability. Recent U.S. Supreme Court decisions (e.g., Sutton v. United Airlines) narrowed the definition of disability such that people with conditions such as epilepsy, muscular dystrophy, cancer, diabetes, and cerebral palsy have been determined to not meet the definition of disability under the ADA.

Election 2008 and the ADAAA

Senators Obama, Biden, and McCain are all co-sponsors of the ADAAA, (click each candidate's name to read their individual platforms on the ADA).  For employers, the ADAAA does not bring good news.  The law will result in increased litigation, and the focus of any future dispute will shift from whether an employee has a qualifying disability to whether the employer engaged in a discriminatory act.

Employment Law Question of the Week

Posted by Molly DiBiancaOn September 19, 2008In: Just for Fun

Email This Post | Print this Post

Ask any attorney who is lucky enough to practice labor or employment law and they'll likely agree that this area of the law can be downright entertaining.  Think about it--sex, drugs, and rock n' roll--these are all key elements of the cases we see.  And we've seen it all and, usually, more than once.  Gossip, drama, rumors, and romance are all par for the course.  I can say with honesty that there is very little that truly surprises me.  But here is one exception.

The magic of Google permits me to run a report that shows the "keywords" that visitors to the Delaware Employment Law Blog typed in as a search term and brought them to the site.  It's a good way to make sure the blog is in line with the readers' interests.  Often the searches are phrased as questions, such as, "What to do about bullies in the workplace?" or "What is the law in Delaware for vacation payout?"  As you can see from Number 13 in the screenshot below, some of the questions are funnier than the normal.  This straightforward reader inquires,

 image

The question, "How to terminate an employee for being dumb" definitely gets my vote for employment-law question of the week.

When It Comes to the FLSA, Can an Employer Ever Just Catch a Break?

Posted by Molly DiBiancaOn September 18, 2008In: Fair Labor Standards Act (FLSA)

Email This Post | Print this Post

The FLSA has wrecked havoc on many employers, big and small.  Failure to properly pay employees overtime can have devastating consequences.  When trying to determine whetheimager a certain employee should be classified as exempt or non-exempt, the general trend is to play it safe rather than be sorry.  In other words, when in doubt, pay overtime.  Well, this theory has turned out to be not as safe as the Ohio Department of Transportation ("ODOT") probably hoped.

The state's attorney general says that ODOT violated federal labor laws by paying $2 million a year in overtime to managers and other workers who should have been classified as exempt, thereby not being entitled to earn overtime compensation.  State inspectors initiated an audit and concluded that there was no justification for the nearly $6 million in overtime paid out since 2005.

New Study Shows Increase in Online Applicant Screening

Posted by Molly DiBiancaOn September 18, 2008In: Background Checks, Hiring

Email This Post | Print this Post

1 in 5 employers use social networking sites to screen prospective employees.  That's according to a new study by Careerbuilder.  34% reported that they rejected candidates based on what they discovered during their online search.  We've written quite a bit about this practice, including what to look for if you do elect to incorporate online background checks into your hiring repertoire.

image Here's what other employers have been looking for and, specifically, what will prompt them to reject a candidate:

  • 41% - content posted about alcohol or drug use
  • 40% - “inappropriate of provocative” pictures
  • 29% - candidate appeared to have poor communications skills
  • 28% - candidate bad-mouthed their previous company or fellow employee
  • 27% - candidate lied about qualifications
  • 22% - discriminatory comments related to race, gender, religion, etc.
  • 22% - candidate’s screen name was unprofessional
  • 21% - candidate was linked to criminal behavior
  • 19% - candidate shared confidential information from previous employers

Unlike some bloggers, I am in favor of this practice--so long as it is performed with certain safeguards.  For example, Nick Fishman's concerns about the accuracy in candidate's Facebook or MySpace pages (1) have not materialized to any significant extent that I've seen; and (2) are allayed by simply asking the candidate about whatever it is that the employer found that may acting as a barrier to employment.  Just as with criminal backgrounds, employers should not make a per se decision without first giving the candidate an opportunity to explain the results of the report and any circumstances surrounding the arrest and/or conviction.  The same interactive discussion should occur if an employer finds something on the candidate's social-networking site that gives them concerns. 

One thing that opponents of this practice seem to overlook is that employers have an affirmative duty, legally, and for business reasons, to make the best hiring decisions possible, using all of the information reasonably available to them.  The only real threat of suit here is if the employer does not take the few minutes required to do an internet search on a candidate who, after being hired, commits an act of workplace violence. If the employee's MySpace page was filled with images of violence and words of rage, you can bet your last nickel that the employer will face a negligent hiring lawsuit for hiring the employee without taking the free and quick step of running that internet search. 

For prior posts on this topic, see:

Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

How to Conduct Online Background Searches With Google

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Top 10 Reasons Why Employers Should Screen Their Applicants

And for employers who are considering the practice of Online Applicant Screening but who don't know where to start, be sure to catch the easy-to-understand video, Video Resources: How to Set Up a Facebook Account for Applicant Screening, available under the Resources > Video Resources tab at the top of the page.

Nov. 18 - 19: Delaware SHRM HR Conference

Posted by Molly DiBiancaOn September 18, 2008In: Seminars, Past

Email This Post | Print this Post

Human Resource professionals, recruiters, trainers, and managers who want access to the latest developments in organizational leadership practices should mark their calendars.  The 8th annual Delaware SHRM conference is just weeks away.  This year, the program will be held at the Clayton Hall Conference Center at the University of Delaware.   image

The program schedule is extraordinary and features some outstanding speakers, including keynote speakers, Bill Cawley, Executive Vice President, Bank of America, and motivational speaker, as well as wellness coach, Christine Sopa, founder of Chris Sopa International.  Peggy Eddens, Executive Vice President - Human Capital Managment, WSFS, will lead off the event at the Evening General Session on Tuesday, November 18.

And, returning again by popular demand, attorneys William W. Bowser and Scott A. Holt will present The Good, The Bad, and The Ugly: Employment Law Update 2008. This yearly update is a great way to get up-to-speed on the many important developments from the last twelve months--in the courts and legislatures of Delaware and nation wide. 

Registration information and additional details can be found at the HR Conference Page on the Delaware SHRM's website.

As Further Proof that Training Is Key to Employee Engagement . . .

Posted by Molly DiBiancaOn September 17, 2008In: Employee Engagement

Email This Post | Print this Post

Employees cannot be fully committed to their work, i.e., "fully engaged" unless they find the work challenging.  And, as employees continue to learn and develop, how they define "challenging" is bound to change.  This means that, in order to foster employee engagement at its maximum capacity, employers must continue to provide employees with new skills so they can, in turn, take on new challenges. 

In short, training is key to employee engagement.  (As I've posted previously, training can be a great way to facilitate retention of key employees, as well).  image

This theory has some new support in the form of a recent survey of workers in the UK.  According to Outlaw.com, which reported on the survey, more than 70% of British workers would welcome a legal right to request paid time off for training. 

The survey also reports:

  • 71% of working people would like to have the right to claim paid time off
  • 53% would be likely to use such a right.

The Trades Union Congress, which conducted the survey, expressed concern that, despite an apparent eagerness to learn new skills, low-skilled workers are the least likely to receive training at work, with only 9% of employees without formal qualifications having participated in job-related training in the last three months, compared to 38% of graduates.

Just more support for the importance of giving employees access to the right training at the right time.

The Enforceability of Noncompete Agreements in Delaware

Posted by Molly DiBiancaOn September 17, 2008In: Delaware Specific

Email This Post | Print this Post

Employees who sign noncompete agreements promise not to compete with their then employer for a certain period of time after termination.  This means that the employee cannot compete directly, by soliciting customers of the employer or unfairly, by using information, knowledge, or contacts obtained by the employee during this employment in a way that would harm the employer after the relationship ends. image

Litigation of noncompete agreements can be very costly.  At the same time, though, such litigation is often necessary to protect the vital interests of the business.  Another problem with litigating a noncompete agreement is the difficulty in proving the breach.  The former employer may suspect that the employee has taken vital information in violation of his agreement, but this may be very difficult to actually prove. 

Developments in the world of computer forensics is making this difficulty less and less of an issue.  Thanks to this branch of science, employers are able to determine whether certain information has been improperly accessed, copied, or even deleted. 

The courts in Delaware have a long relationship with noncompete agreements.  Delaware, considered by many as a "pro-business" state, has a history of enforcing reasonable noncompetition and nonsolicitation agreements.  The standards for determining enforceability are largely the same as those used by other states' courts with one exception.

In most states, the law requires some form of consideration for the agreement other than continued employment.  In short, in most states, an employer who approaches a current employee and says, "Sign this noncompete agreement or you're fired" will not have any luck enforcing that agreement.  Instead, those states require the employer to offer some additional form of consideration.  This can be satisfied by presenting the noncompete agreement at the time of hire--i.e., we'll give you a job if you give us your promise not to compete when you leave--or by a promotion, raise, or just plain cash.  The logic is sound--an employee who will be offered a promotion to a higher level position with higher level access to sensitive information can be required to promise not to abuse that access.  If an employer doesn't offer "something for something," as the saying goes, the agreement, like any other contract, will not be enforceable by the courts.

Except, that is, in Delaware.  In Delaware, and especially in the Delaware Court of Chancery, one of the few equitable courts in the entire country, there is no need for any "additional" consideration.  In Delaware, the simple promise of continued employment is sufficient.  And by "continued employment," we do not mean an employment contract or a promise to employee the individual for any given period of time.

Instead, because Delaware is an "at-will" state, where an employer can fire an employee at any time for any (lawful) reason, or for no reason at all, the mere fact that the employer promises not to terminate the employee at that minute is enough consideration.  So, if you are an employee in the First State of Delaware, and your Delaware employer comes up to you and says, "Sign here or you're fired," don't assume that the employer is totally off-base.  Although this might be the case in most states, in Delaware, it's just not so. 

More Fodder for the Fair Pay Debate

Posted by Maribeth L. MinellaOn September 17, 2008In: Equal Pay, Gender (Title VII), Wages and Benefits

Email This Post | Print this Post

The debate about equal pay is bound to continue in light of pending legislation like the Fair Pay Act and the Paycheck Fairness Act, which was passed by the House on July 21, 2008. Here are the nuts and bolts every employer should know about these important new developments.

The Fair Pay Act

The Fair Pay Act seeks to end wage discrimination against those who work in female-dominated or minority-dominated jobs by establishing equal pay for equivalent work. Under the Fair Pay Act, employers could not pay jobs that are held predominately by women less than jobs held predominately by men if those jobs are equivalent in value to the employer. The bill also protects workers on the basis of race or national origin. The Fair Pay Act makes exceptions for different wage rates based on seniority, merit, or quantity or quality of work.

The Paycheck Fairness Act

The Paycheck Fairness Act seeks to strengthen the Equal Pay Act of 1963.  The bill expands damages under the Equal Pay Act and amends its very broad fourth affirmative defense. In addition, the Paycheck Fairness Act calls for a study of data collected by the EEOC and proposes voluntary guidelines to show employers how to evaluate jobs with the goal of eliminating unfair disparities.

Ledbetter Fair Pay Act / Fair Pay Restoration Act

Another interesting piece of pay-related legislation to watch is the Lilly Ledbetter Fair Pay Act / Fair Pay Restoration Act, which seeks to amend the Civil Rights Act of 1964 and other anti-discrimination laws to clarify at which points in time discriminatory actions qualify as an “unlawful employment practice.”  The Fair Pay Restoration Act seeks to change the results of Ledbetter v. Goodyear Tire & Rubber.  (For more information about the Ledbetter decision, see Equal Pay: Fair Pay Restoration Act Voted Down in Senate). 

Under the Fair Pay Restoration Act, an unlawful discriminatory act is committed when a discretionary compensation decision is adopted, when an employee becomes subject to the decision, or when an individual is affected by the application of a decision, including each time compensation is paid.   This is inapposite to Ledbetter, where the U.S. Supreme Court held that employees cannot challenge ongoing pay discrimination if the employer’s original discrimination decision occurred more than 180 days before the most recent discrimination, even when an employee continues to receive paychecks that have been discriminatorily reduced for some time. The law further states that individuals may receive back pay as compensation for discrimination that occurred up to two years preceding the filing of a charge.

Legal Considerations for the Four-Day Work Week

Posted by Molly DiBiancaOn September 16, 2008In: Alternative Work Schedules

Email This Post | Print this Post

Any employer considering a four-day work week should consider the possible legal implications before making the plunge.  Four-day-work-week policies potentially invoke several employment laws that may impact the decision-making process.  So, prior to switching to a compressed schedule, read on for some thoughts on how such a switch may trigger obligations under the ADA, FMLA, NLRA, and other significant employment laws.

 

[This post covers an important topic in some detail and is may be a lot of information to digest at once. I've made the material available in a pdf via the link below]image

 

The Americans With Disabilities Act

The Americans With Disabilities Act (“ADA”), prohibits workplace discrimination against qualified individuals with a disability. Employers have an obligation to make reasonable accommodations to the known physical or mental limitations of an individual, unless the employer can show that the accommodation imposes an undue hardship or the person poses a significant risk of substantial harm to himself or others.


There is some risk that a compressed work week may have negative consequences for employees protected by the ADA.  For example, employees who have a disability that causes fatigue or weakness may require shorter work days and longer work weeks as a reasonable accommodation. In a workplace where all employees are converted to a compressed work week, the ADA would not require the employer to make an accommodation for the individual.  In that case, though, the employee who is unable to work an extended shift could find himself unemployed.


Of course, you may decide to offer the employee the opportunity to convert to a part-time schedule, thereby enabling him to continue on the reduced-hour shift. But if this alternative would cause the employee to lose his or her health-care coverage, it may not be seen as an alternative at all. Where only some of the workforce is converted to the reduced-day schedule, the employer should make every reasonable effort to preserve the employee’s accommodation by ensuring that he is not required to convert to the compressed work week.


Another scenario with the potential for negative consequences is in the case of an employee who takes time off for the treatment of a long-term or chronic condition. For example, an employee may be given off every Thursday afternoon so that he can receive kidney dialysis. This type of accommodation may have a more serious impact on the productivity of the workplace in a
four-day week. If he had previously been permitted to leave on Thursdays at 3pm instead of 5 pm, the company could be said to have lost 2 hours of work product during that time. Yet, in the compressed work week, the employee, who was too fatigued to return to work following his dialysis treatment, would now be out from 3 pm to 7 pm—doubling the lost time to 4 hours.


Although the employee may be able to push back the time for his weekly appointment to 5 pm, or even reschedule them for Friday afternoons instead, it is also possible that he may not be able to make the change for any number of reasons. It is safe to presume that he needed the appointment on Thursday originally for a reason, thereby necessitating the accommodation in the first place. In this case, the employer would have to find a way to work around the four hours of lost productivity. It would likely violate the ADA to revoke the employee’s accommodation.


The Family and Medical Leave Act

The Family and Medical Leave Act ( “FMLA”), provides up to 12 work weeks of unpaid, job-protected leave in a twelve-month period for one of four qualifying reasons: (1) the birth of a child and the first year care of the newborn; (2) the placement of a child through adoption or foster care and the
first year care of the child; (3) the need to care for a parent, spouse or child with a serious health condition; and (4) the serious health condition of the eligible employee.  The FMLA provides for intermittent leave, which is taken in separate blocks of time due to a single qualifying reason.

The same concerns identified in the ADA scenario, above, are also present in the context of FMLA intermittent leave. Because the 4/10 schedule puts a heavy emphasis on increased productivity via a shortened work week, absenteeism would have a greater impact.

But productivity is not the only concern. The more stress put on an organization as a result of an employee taking protected leave, the more likely it is that the employee will be subject to unlawful retaliation. Supervisors who are unfamiliar with the anti-retaliation provisions of the FMLA may be more likely to terminate, or take other adverse action against an employee who is on
protected leave.

 

The National Labor Relations Act

The National Labor Relations Act (“NLRB”), is the statute that governs union activity. As the NLRB has been interpreted, a change in work schedules is a mandatory subject of bargaining. In other words, employers in the unionized workplace may not unilaterally institute a four-day work week policy. Instead, the union would have to consent to such a change. This, of course, could trigger negotiations on other, unrelated issues. 

 

The Fair Labor Standards Act

The Fair Labor Standards Act (“FLSA”), controls the way in which regular wages are determined. The FLSA mandates the minimum wage, for example. It also provides the standards for what constitutes overtime hours and how overtime rates are calculated. It regulates what pay records employers must maintain and for how long.

Finally, the FLSA is the law that governs child labor.  The FLSA imposes limits on the hours that a minor under 16 can work. Parallel state laws often impose stricter limits—regulating which hours, the total number of hours, and the maximum number of consecutive hours that a minor may be permitted to work. The U.S. Department of Labor provides a link to each state’s child-labor laws. Be sure to check every state in which you may employ children under 18 so that you are in compliance with those state’s laws, as well as the FLSA. (http://www.youthrules.dol.gov/states.htm)


Some of the most misunderstood provisions of the FLSA are the overtime regulations. According to federal law, employers must pay non-exempt employees at one and one-half times the regular rate of pay whenever the employee works any hours in excess of 40 during the work week. Federal overtime law does not require premium pay for time worked in excess of 8 hours per day.
It is common practice in many industries, though, to pay overtime (or even double time) to employees who work a shift longer than the standard 8 hours.

How these industries would handle a compressed work week is unclear. It seems highly unlikely that those employers will continue to pay a premium rate for what would be standard time. As a result, employees who have come to rely on the extra income may resist making the change. Would the drop in pay drive the employees to look for work with another organization?

In a few states, including Alaska, California, Colorado, and Nevada, employers are required to pay an overtime rate based on the number of hours worked per day, as opposed to per week. So, in Alaska, employers who implement a compressed work week will be required to pay employees two hours per day, or eight hours per work week at time and one-half of their normal hourly rate.  Calculated over the period of a year, this means that employers would be paying for approximately 400 hours per employee for time that was not actually worked.


Special Considerations in California

California employers face additional obstacles. In accordance with the California Labor Code,  employees who work 10 hours or more per day in a 40-hour work week must be compensated at their overtime rate. To implement an alternative work schedule, employers must comply with some onerous requirements.

The plan must be described in a written notice that must be provided to the affected work unit. A meeting must be held where the employees are given the opportunity to discuss the proposal. Then, a secret-ballot election is held no fewer than 14 days after the meeting. More than two-thirds of the work unit must vote to approve the schedule.


The employer has 30 days to report the results to the state Division of Labor Standards Enforcement. In addition, workers cannot be required to work the new schedule for another 30 days. During these forty-four (or more) days, there can be work stoppages and other disruptions to the workplace as the focus turns to the proposed change in schedules.

Will Mandatory "Commuter Benefits" Lead to More Compressed Workweeks?

Posted by Molly DiBiancaOn September 16, 2008In: Alternative Work Schedules, Benefits

Email This Post | Print this Post

Employers are going green.  Employees are compressing their work weeks and saving gas.  And now, one major U.S. city is mandating employers provide "commuter benefits" to employees.  Will this prompt more employers to adopt a four-day workweek?  image

Some key features of the new ordinance: 

Beginning 120 days after August 22, 2008 [December 22, 2008], San Francisco employers with 20 or more employees must provide commuter benefits to employees who work at least 10 hours of work per workweek within the geographic boundaries of San Francisco. This includes offering employees at least one of the following transportation benefits:

1. A pre-tax election of a maximum of $110 per month, consistent with current federal law; or
2. An employer-provided transportation pass (or provide reimbursement for) equal in value of $45 (or more) per month; or
3. Employer provided transportation at no cost to employees.

Is this a prediction of things to come?  If employers are required to pay employees up to $110 per month for the costs of commuting, I'd say that the four-day work week movement would likely explode.  One of the big motivators of the four-day work week has been the high cost of fuel. Employers claim that the compressed workweek will help alleviate the cost of gasoline for employees. 

[H/T to California's favorite HR blogger, HR Lori]

For more on the Four-Day Work Week, the pros and cons, various alternatives, and considerations for implementation, see:

  1. Feds Take a Cue from the States and Consider the 4-Day Workweek
  2. 35 Questions You Should Ask When Drafting a Compressed Work Week Policy
  3. Positive Benefits of a Four-Day Work Week
  4. 5 Steps Toward a More Flexible Workplace
  5. Should a Four-Day Work Week Be Mandatory*
  6. It's Saturday Today in Utah: 4 Day Work Week
  7. Alternatives to the Four Day Work Week
  8. Popularity of the 4-day Week Continues to Grow
  9. Will Four-Day School Week Push the Four-Day Work Week Trend?
  10. Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.
  11. Alternative Work Arrangement May Soon Become Mandatory
  12. I Hate To Say "I Told You So"–The 4-Day Workweek Is a Hot Topic
  13. How the Current Economy Could Affect the Future of Flextime
  14. New Employer & Workplace Study on Flexible Schedules 
  15. The Pros and Cons of a 4-Day Workweek: Cons 
  16. New Survey on Workplace Lateness Supports Flextime Initiatives?

Religious Discrimination & Prayer At Work: Employees Who Pray

Posted by Molly DiBiancaOn September 16, 2008In: EEOC Suits & Settlements, Religious (Title VII)

Email This Post | Print this Post

In a recent post, Religious Discrimination & Prayer At Work: Employers Who Pray, we talked about employers who conduct prayer at the start of a business meeting.  The EEOC recently announced that it endorses such conduct, at least insofar as it does not find pre-meeting prayer to be discriminatory per se.  We wondered how many employers would be so bold as to follow this announcement after being counseled for so long that such an idea would be a sure-fire way to land in federal court sued for religious discrimination.  I don't have any developments to report from the employers but it appear that employees think the idea is ok--so long as they are the ones picking the religion. image

In Minneapolis, Gold'n Plump Poultry, Inc. announced that, pursuant to the settlement of a class action lawsuit, it will allow Muslim workers to take short prayer breaks and to refuse to handle pork at the company's poultry processing facilities.  The lawsuit accused the Work Connection employment agency of requiring Muslim applicants to sign a "pork acknowledgment form," in which they agreed to handle pork products. It was alleged in the complaint that Somali workers who did not sign the document were not hired.

Gold'n Plump explained that employees will now be provided a 10-minute break in the second half of the shift at a certain time and only in a portion of the plant.  The employees had sought to be granted permission to leave the processing line when necessary to pray.  All employees, regardless of religion, will be granted the break.

Religious Discrimination & Prayer At Work: Employers Who Pray

Posted by Molly DiBiancaOn September 15, 2008In: Religious (Title VII)

Email This Post | Print this Post

The EEOC recently published an updated Guidance on Religious Discrimination.  The Guidance address the issue of religious discrimination in the workplace in a question-and-answer style format, as well as a "best practices" section.  We posted about the EEOC Guidance previously, in Increase in Religious-Discrimination Claims Prompts EEOC to Issue Updated Guidance. eeoc_logo

Last week, John Phillips, at The Word On Employment Law, posted an interesting piece about part of the Religious Discrimination Guidance that I hadn't previously heard much about.  From the Guidance:

“Some employers have integrated their own religious beliefs or practices into the workplace, and they are entitled to do so.  However, if an employer holds religious services or programs to include prayer in business meetings, Title VII requires that the employer accommodate an employee who asks to be excused for religious reasons, absent a showing of undue hardship.  Excusing an employee from religious services normally does not create an undue hardship because it does not cost the employer anything and does not disrupt business operations or other workers.”

That's correct--the EEOC's current position on prayer in the workplace is that it ok, even if it is initiated by the employer and even if it occurs during working time--even if that means during a business meeting. 

Well, this is a new one for me.  I can't recall a time when I advised a client that holding prayer services wouldn't be a problem, and heck, go right ahead and pray at meetings--just make sure any dissenting employee is permitted to be excused. 

I do have clients who are employers founded on religious principles for which faith and prayer are at the core of their business structure.  But even organizations with high levels of religious practice do not conduct prayer as part of business meetings.

The comments that follow John's post are very insightful.  I'd add this:

Believe it or not, I think the market would regulate this problem much more than one might initially think.  Even at organizations that are considered to be religious at their core, I can only imagine the outcry if prayer was held at the start of the meeting.  My phone would be ringing off its hook.  And a mutiny would likely follow.  If the company wants to retain its staff, it will have to forgo the pre-meeting prayer.  And the more successful the organization, the larger the organization, and the more staff the organization must hire and retain.  Any organization that understands the challenges of hiring and retention efforts would be at a real disadvantage to institute prayer at meetings if the meeting attendees weren't likely to think favorably of it.

And those are my two cents on the EEOC's latest Guidance on Religious Discrimination.

5 Words of Warning about Improper Deductions and the FLSA

Posted by Molly DiBiancaOn September 14, 2008In: Fair Labor Standards Act (FLSA)

Email This Post | Print this Post

The Fair Labor Standards Act ("FLSA"), presents substantial exposure for employers.  Although most employers are aware of the dangers of the FLSA's overtime regulations, some of the other provisions of the FLSA are less known but equally risky.  One such area is improper deductions taken from the weekly pay of exempt employees.  Here is a quick run down of the basics you need to know.  Remember, these rules govern exempt employees who are paid on a salary basis.  image

The general rule is that exempt employees must be paid for the entire week, regardless of whether they work the whole week. There are some exceptions to the rule.

1.    Disciplinary suspensions can be tricky.  A suspended employee need not be paid for the week if he did not work any time during that week. This exception does not work if the employee works even one day, or even a couple of hours, during the week. Further, the suspension must be made in good faith based on workplace conduct-rule infractions.  If no written policy was violated, it is not advisable to deduct that time missed. But, if an employee is suspended or sent home as a penalty imposed in good faith for infractions of safety rules of major significance. 

2.    The employee need not be paid if he is absent from work for one or more full days for personal reasons other than sickness or disability.  Deductions may be made for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness.  Remember, this exception applies only if the employee missed the full day of work. 

3.   Deductions may be made to offset amounts employees receive as jury or witness fees, or for military pay.

4.     The employee need not be paid for the entire week during the first and terminal weeks of employment.  So, if the employee's first day of work is on a Wednesday, he can be paid on a pro rata basis for that week instead of the entire week's salary.  Same goes for the employee's last week.  If the employee quits without notice on Wednesday, you need not pay him for Thursday and Friday.

5.    Finally, deductions may be made for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.

Strip Clubs: One Social Event Not to Include In a Summer Intern Program

Posted by Molly DiBiancaOn September 12, 2008In: Harassment, Sexual, Just for Fun

Email This Post | Print this Post

Employer's Nightmare.  A true story about the real dangers of summer internship programs--the social events.  First featured first by Jeremy Hodges at Law.com.

stiletto heel clear platform 1(2)

 

Act I: The Woes of Employer

Employer hires summer interns. Employer pays summer interns a lot of money. Employer requires very little work from summer interns. Employer ensures summer interns are wined and dined. Employer hopes summer interns will return for full-time work.

Act II: A Night On the Town

Employees organize a Friday-night gathering. Employer may or may not have sponsored said gathering. Gathering ends up in a strip club. In strip club, one male employee gets too close to summer intern. Summer intern, disgusted, rebukes employee's advance.

Act III:  Back at the Office

Intern reports employee's conduct. Employee's conduct is investigated by Employer. Employee leaves Employer. Intern accepts position with different Employer.

Tragic Ending

Employer is faced with lose-lose scenario.

Moral of the Story 

Don't let the kids out without a chaperone and make sure you know which employees are still kids.

The Death of a Sexual-Harassment Policy

Posted by Molly DiBiancaOn September 12, 2008In: Harassment, Sexual, Policies, Public Sector

Email This Post | Print this Post

Savvy employers know the potential value of a sexual harassment policy.  Without an effective harassment policy, employers may not avail themselves of the most common (and successful) defense.  Employers take pains to ensure that their sexual and other types of harassment policies are thorough, are communicated to employees, and are capable of remedying the conduct as promptly and effectively as possible.  

So you can imagine the disappointment of Temple University when the Court of Appeals for the Third Circuit recently struck down the University's sexual harassment policy.  The court held that the policy was overly broad and improperly infringed on the free-speech rights of students.  Public employers should heed this warning--an overly broad harassment policy runs the risk of being invalidated.

And are you wondering what it was that the plaintiff claimed he could not say because of the sexual harassment policy?  The former graduate student who filed the lawsuit claimed that the policy prevented him from expressing his opinions about the role of women in the military.

The plaintiff, Christian DeJohn, was enrolled in Temple's Masters program, where he was pursuing a degree in Military and American History.  The topic of DeJohn's masters thesis was the role of women in the military.  DeJohn argued that the policy restricted his ability to voice his opinions.  After DeJohn commenced his litigation, Temple voluntarily amended the policy.

The Third Circuit found two problems with the school's sexual harassment policy.  First, the policy, which prohibited "all forms of sexual harassment," specifically targeted “expressive, visual, or physical conduct of a sexual or gender-motivated nature when… such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . of creating an intimidating, hostile, or offensive environment.”  The problem with this language is that the policy barred such conduct regardless of whether it actually had such an effect.

Second, the Court found that the language of the anti-harassment policy prohibited too wide a range of activities, noting that the use of words such as "'hostile,’ ‘offensive,’ and ‘gender-motivated’" were so broad and subjective that they could be applied to just about any speech that is "gender motivated" and that someone finds offensive. 

Off-Duty Conduct of College Pres Leads to Firing

Posted by Molly DiBiancaOn September 12, 2008In: Off-Duty Conduct

Email This Post | Print this Post

Employers have an interest in the activities of employees--even if those activities occur during non-working time.  Much to the chagrin of employees, employers do care, strongly, about the off-duty conduct of the workforce.  The "who" and the "what" of employers' focus is broad and varied.  From local newscasters to international sports superstars, all employees will be held accountable for their actions taken while "off the clock."  And whether those actions include smoking, overeating, or cheating on one's spouse, you can bet that some employer, somewhere in the country, puts a scarlet letter on any employee who may participate in them.  Although some examples of off-duty conduct seem a bit overboard, this story seems to reside fairly close to the line of relevancy. beer

Iowa Central Community College's Board of Trustees voted unanimously to accept the resignation of the school's President.  Robert Paxton, 52, had served as president for 13 years at the time.  One day before the incident that led to his separation, Paxton signed a three-year renewal agreement.  

And, according to ABC News, less than a week later, the firestorm began. 

A picture was published in the Des Moines Register that appeared to show Dr. Paxton pouring beer into a young woman's mouth.  The picture appears to have been taken on a boat, where Paxton is seen with a group of young people.  He is holding a small keg over the young woman's head.

The Board says that, although the incident happened while Paxton was off-duty, his choices, "it reflected poorly on the college."

Thanks to the renewal agreement that he signed just before the July 4th weekend when the off-duty conduct is said to have occurred, Paxton will receive a severance package valued at approximately $400,000, which includes his salary for two years and continued health-care coverage. 

So what's the verdict?  Does the college president's off-duty conduct (i.e., beer kegging it with a bunch of college-aged individuals), reflect poorly on the school?  So much so that termination would have been appropriate had he not stepped down? 

Employment-Law Seminars: Fall Update 2008

Posted by Molly DiBiancaOn September 11, 2008In: Seminars, Past

Email This Post | Print this Post

The attorneys in the Employment Law Department at Young Conaway have several upcoming speaking engagements.  Here's a recap:

Sept. 25-26:  Advanced Employment Issues Symposium

William W. Bowser, Scott A. Holt, Adria B.  Martinelli

Las Vegas, NV, hosted by HR Hero

Document7

 

October 16:  Jerks at Work

Molly DiBianca

Not open to the public

Document7

 

October 23:  Developing Your Employee Handbook

Molly DiBianca

Georgetown, DE, hosted by Lyons Co.

Document7

 

October 30:  Developing Your Employee Handbook

Molly DiBianca

Wilmington, DE, hosted by Lyons Co.

Document7

 

November 12:  Wage & Hour Master Class

Scott A. Holt, Molly DiBianca

Wilmington, DE, hosted by HR Hero

Campaign Trails: One Question for the Candidates

Posted by Molly DiBiancaOn September 11, 2008In: Newsworthy

Email This Post | Print this Post

Connecticut Employment Law Blog's Dan Schwartz has issued a challenge to his readers, which include more than a few fellow employment-law bloggers.  He's asked, what one question regarding labor and employment law would you ask the candidates? j0384726

I am glad to oblige, of course.  That being said, I can hardly be described as a fervent political observer.  So I think I'll leave the tough questions to the brains in the group like John Phillips,  favorite employment-law blogger, at The Word on Employment Law.  Instead, I'd ask questions that reflect the state of the workplace today.  And I'd ask both presidential candidates the same question in reverse.  Here goes:

To Biden:  How much will you miss the First State?   [And don't give me a hard time about the non-question.  I mean, really, how often do we Delawareans have a hometown player in the national political arena??]

To McCain:  If elected, you will be the oldest person ever inaugurated as president.  Your running mate, Sarah Palin, is the youngest person ever to hold the office of governor in the State of Alaska.  Based on your working relationship with Governor Palin, what role do you predict the generational divide may play in the workplace?

To Obama:  You are the youngest Democratic presidential candidate in history.  Your running mate, Senator Joe Biden, has served in the Senate for 35 years.  Based on your working relationship with Senator Biden, what role do you predict the generational divide may play in the workplace?

To Palin: You were back to work just one day after the birth of your fourth child and just three days after the birth of your fifth child.  Each time, you brought your infant with you to the Governor's office while you worked.  Would the current demand for work-life balance and alternative work schedules be benefited by allowing parents to bring infants and small children to the workplace, such as through employer-sponsored, on-site daycare?

Employer Yells Yahoo! for Employee's E-Mail

Posted by Maribeth L. MinellaOn September 11, 2008In: Electronic Monitoring

Email This Post | Print this Post

The extent to which an employer may access an employee's personal e-mail account is an unsettled issue.   Many employers have policies in place that either prohibit or significantly limit an employee from accessing personal e-mail during work hours.  Most employers have (or, if not, should have) a right-to-monitor policy, which notifies employees that the employer may actually monitor access to personal e-mail accounts if the employee is using company equipment.  A recent decision from a federal court in Florida supports the employer's position that it can compel an  employee to turn over e-mail from a personal account.     email

In

(pdf), a breach of employment agreement and misappropriation of trade secrets case, an employer moved to compel production from the employee's personal Yahoo! e-mail account.  Although the employee claimed he could not produce any e-mails because he presumed they had been destroyed by Yahoo!, the only support for his position was a generic letter from Yahoo! which indicated the account at issue had been deactivated. 

Not surprisingly, the court found the employee's explanation dubious--even more so after the court learned that the employee untimely identified his personal account because, in his opinion, production of e-mails would be "impossible."  According to the employer, the employee used this specific personal account to engage in the activities upon which the entire lawsuit was based. 

Thus, given the potentially high evidentiary value of the e-mails, the court sanctioned the employee (although any potential fine is dependent upon how successful the employee is in his court-ordered attempt to obtain the e-mail from Yahoo!).  The court further cautioned that if it turns out the employee's failure to identify his personal e-mail account and obtain messages from his account results in the spoliation of evidence, the court will consider serious penalties. 

It's a Small World, Afterall--Or maybe it's just Norway.

Posted by Molly DiBiancaOn September 10, 2008In: National Origin (Title VII)

Email This Post | Print this Post

Title VII prohibits discrimination in employment based on certain protected characteristics, such as race, religion, and national origin.  On the broadest level, this means that an employer cannot refuse to hire an applicant based solely on his or her national origin.  The EEOC has seen a steady rise in national-origin claims since September 11.  A recent decision from the Court of Appeals for the Eleventh Circuit is an unusual example of a Title VII claim. image

Anesh Gupta, an Asian male, was a college intern working at the Epcot Center in Disney World.  As part of his internship, Gupta became a server during the breakfast shift at the Norwegian restaurant.  When he was hired, breakfast was considered an "American" meal.  Later, the schedule was changed and the Norwegian breakfast was served all day.  Gupta was terminated for being "culturally unauthentic."

Some employees, including servers at the Norway Pavilion were required to be "cultural representatives," interacting with guests and explaining the country's history, culture, and traditions.  The employees' were required to speak the language and possess an adequate command of English in order to communicate with visitors to the theme park.  

The court found that Gupta was not qualified to be a server at the Norwegian restaurant under the Disney World guidelines.  Servers were required to be culturally authentic to Norway and Gupta admitted that he had visited Norway only once for one or two days and that he did not have first-hand knowledge of Norwegian culture.  Further, it was not Gupta's Asian ancestry that disqualified him from working at the restaurant.  Disney presented evidence of other Asian individuals who had been qualified to serve as cultural representatives in the Norway Pavilion. 

Employers Want to Know, Who's Friends With Joe (Biden)?

Posted by Adria B. MartinelliOn September 9, 2008In: Locally Speaking, Newsworthy

Email This Post | Print this Post

In a prior post, Senator Biden on Work-Life Issues, I wrote on Biden’s stand on work-life issues. What about other matters of interest to Delaware employers? Is his possible ascension to the Vice Presidential role a good or bad thing for Delaware employers?

image

Friend or Foe?

It should come as no surprise that Biden has taken the “employee”-side on several important pieces of pending employment legislation. Biden supported the Paycheck Fairness Act (S. 766), which is intended to prevent pay discrimination by strengthening penalties should it occur. Biden’s support for the Fair Pay Restoration Act (S. 1843), should also be no surprise. The Fair Pay Restoration Act seeks to address the 2007 U.S. Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber.

In the Ledbetter decision, the Supreme Court held that employees cannot challenge ongoing pay discrimination if the employer’s original discrimination decision occurred more than 180 days before the most recent discrimination (300 days under Delaware’s statute), even when an employee continues to receive paychecks that have been discriminatorily reduced for some time. Under the Fair Pay Restoration Act, an unlawful discriminatory act is committed when a discretionary compensation decision is adopted, when an employee becomes subject to the decision, or when an individual is affected by the application of a decision, including each time compensation is paid. If this Act is passed, employers could be exposed to lawsuits based on decisions made decades ago.

Biden also supported amendments to the Americans with Disabilities Act (ADA) (S. 3406), which has been placed on the Senate’s legislative calendar. The Act promotes changes to the ADA which purport to override several U.S. Supreme Court decisions which apply a strict standard for individuals to meet in order to show that they are disabled or regarded as being disabled under the ADA. The Obama-Biden platform includes goals of appointing judges who respect laws designed to protect people with disabilities, increasing funding for enforcement, and garnering support for the Genetic Information Nondiscrimination Act (S. 358). However, Delaware has long protected against discrimination on the basis of genetic information, so passage of GINA would not mean anything new for Delaware employers.

Finally, Biden is a co-sponsor of the Employee Free Choice Act (S. 1041). If passed, that act would enable workers to form unions when a majority sign union authorization cards, establish mediation and binding arbitration when the employers and workers cannot agree on a first contract, and strengthen penalties for companies the coerce or intimidate workers.

Bank on Biden?

At the same time Biden has taken “pro-employee” stances on employment legislation, he has put his full weight behind, and achieved great success on behalf of, at least two significant segments of Delaware employers: banks and the legal system. He supported the 2005 bankruptcy reform law, which made it harder for consumers to rid themselves of debt, but benefited banks such as MBNA (since acquired by Bank of America).

Also as part of the 2005 law, the U.S. Bankruptcy Court for the District of Delaware got four new judges. Once the new judges were assigned, Delaware regained its top position for bankruptcy filings, with nearly 80% of companies seeking bankruptcy protection filing in Delaware in 2007. Biden has thus endeared himself to Delaware’s legal employers, by ensuring Delaware’s prominence in the bankruptcy field.

Joe – We Hardly Knew Ye

So what will it mean if Biden moves from his leadership position in the U.S. Senate to one in the executive office? As Vice President, Biden would also become the President of the U.S. Senate. As President of the Senate he has the primary duty to cast a vote in the event of a Senate deadlock. However, his constituency has changed from Delaware, to the entire nation.

One would expect Biden to use his vote to support Obama’s platform, not Delaware’s interests. Obama has strongly criticized the bankruptcy reform act, and has taken aim at the same financial services industries Biden has supported. Even if Biden were inclined to support Delaware’s interests, there is a strong convention within the U.S. Senate that the Vice President should not use his position as President of the Senate to influence the passage of legislation or act in a partisan manner, except in the case of breaking tie votes. For these reasons, Biden is unlikely to use his position to advocate for Delaware employers, as in the past.

The Connection Between Training and Employee Retention, According to Gen Y

Posted by Molly DiBiancaOn September 8, 2008In: Employee Engagement, Generations: Boomers, Xers, and Millennials, Privacy In the Workplace

Email This Post | Print this Post

Training is directly connected to employee retention.  Many employees view adequate training as an essential element of a satisfying workplace.  Gen Y sees continuing training as particularly important.  This could be, in part, because of the high priority the Millenial Generation places on making a valuable contribution to the workplace.  And it could be because the average Generation Y employee stays at a job for just 2 years, making continued learning even more important to keeping their skills sharp.  image

But how Gen Y defines training is as different as the high value they assign to its importance.  The most recent generation to join the workforce demands access to "knowledge in chunks."  Given their familiarity with YouTube, podcasts, and online tutorials, Gen Y is used to jumping online and having immediate access to on-demand learning whenever it is convenient for them. 

Their older coworkers, on the other hand, are more likely to turn towards the traditional paper manual.  They are also more comfortable with classroom training and will request reimbursement for academic tuition fees-not the cable internet bill.

The same casual approach that characterizes Generation Y's workplace attire carries over to their approach to knowledge sharing.  They are not shy and have no qualms about asking their more knowledgeable coworkers for the answer they need.  And, given that casual attitude, they're more likely to just "holler across the cubicle walls" to a colleague.  Boomers, who have spent a career in a much more formal and structured workplace, are less than comfortable with this casual interaction.

So what's the lesson for employers?  For one, if you haven't already adapted a training and learning approach that fits the Gen Y model, get moving!  Your best Gen Ys may already be "googling" their next career opportunity!!

Talk About Attention to Detail!

Posted by Molly DiBiancaOn September 8, 2008In: Just for Fun

Email This Post | Print this Post

Every supervisor and manager in professional services dreams of having a team full of members, each of whom are absolutely obsessed with details.  Never again would a document go out with a proofreading error.  No misspelling or grammatical mistake would go unnoticed.  Of course, this is not the world that I know.  And many of you, I suspect, live in the same world. 

Apparently, though, some of our co-inhabitants do not want to accept this forgiving standard.  According to the New York Times, "two self-styled vigilantes against typos" toured the country last year, vowing to even the score--in favor of the proofread document.  The purpose of their tour (or mission) was to correct errors on government and private signs.  The tour came to an end when they were arrested for correcting an erroneous apostrophe and adding a comma to a vintage sign in Grand Canyon National Park.   The duo, whom the Chicago Tribune called "a pair of Kerouacs armed with Sharpies and erasers and righteous indignation" pleaded guilty and were sentenced to one year probation.

Well, until this daring duo is free from the restrictions of probation, it looks like we'll have to continue to suffer the horror of imperfection.

  image

 

image

What Makes a Good Leader? If You Lead Gen Y's, You'd Better Find Out.

Posted by Molly DiBiancaOn September 8, 2008In: Generations: Boomers, Xers, and Millennials

Email This Post | Print this Post

What makes a good leader? Each leader surely has his or her own thoughts on this.  And so do those who are required to follow that leader.  If leader and follower do not value the same characteristics, trouble may follow. A recent survey may provide some helpful insight to this question.  The survey looked at the attributes that individuals value most in a leader. 

Respondents ranked the following characteristics as contributing the most to an individual's ability to lead:

85%  Accountable

82%  Knowledgeable

81%  Honest

78%  Effective

78%  Integrity

76%  Good listener

72%  Flexible

69%  People Person

68%  Visionary

62%  Inspiring

59%  Intelligent

57%  Creative

55%  Experienced

54%  Strong

The highest rank trait, "Accountable," is defined as "is responsible, admits and learns from mistakes."  Not too surprising.  Accountability is integral to gaining respect from others.  Accountability includes not just taking blame but it also means not taking credit that belongs to others.  Those who are charged with the responsibility of a leader but who steal credit from their reports will not likely go far in the leadership ring. 

But, as BusinessWeek reports in Gen Y: It's What You Know, the results of the survey that are a bit more surprising involve generational perspectives. Once again, Gen Y stands apart from its Boomer and Gen X colleagues.  

Gen Xers and Boomers both selected "Accountable" as the most important quality in leaders, with Boomers ranking it slightly higher.  (88% vs. 83%).  But Gen Y didn't see accountability as the most important.  Instead, Gen Y selected "Knowledgeable" as most important. (79%).

The quality rated the most different?  Integrity. It was rated as Very Important by 66% of Ys, while 76% of Xers and 84% of Boomers thought it was Very Important.

ADA 104: What Certification May Be Required?

Posted by Molly DiBiancaOn September 4, 2008In: Disabilities (ADA), HR Summer School

Email This Post | Print this Post

HR Summer School's Back-to-Basics Series is back, after a brief vacation.  This segment, ADA 104, covers the certification issues that commonly arise when an employee with a disability requests a reasonable accommodation.  As always, Course Materials are provided for your reference.

(pdf)

 

I. When May Certification Be Required?

The issue of certification arises most often when the individual first requests an accommodation. On a broad level, employers may ask employees for documentation to support the reasonableness of the request. The EEOC has explained that an employer may require documentation “to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation.” In short, when the disability or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about the claimed disability and functional limitations.

A. What Is “Reasonable Documentation”?

“Reasonable documentation” means that the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. This means that an employer may not ask for documentation that is unrelated to determining the existence of a disability and the need for an accommodation.

In most situations, an employer cannot request a person’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation.

B. Who Is an “Appropriate Professional”?

The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.

C. What Types of Information Should Be Requested?

In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care professional. The employee may be asked to sign a limited release allowing the employer to submit a list of specific questions to the employee’s health-care professional.

D. What If the Employee Refuses to Provide Documentation?

An employee who refuses to provide the reasonable documentation requested by the employer will not be entitled to reasonable accommodation. On the other hand, failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation. The employee’s desire to retain a level of privacy concerning his disability does not trump an employer’s need for sufficient information. The failure of an employee to provide this information releases the employer from responsibility for knowing information about the disability and providing a reasonable accommodation.

An employer will not be liable where it attempts to interact and the employee refuses to participate or withholds essential information. The employee’s failure to respond to his employer’s repeated requests for documentation concerning his ability to return to work will obviate the employer’s duty to consider the requested accommodation.

Similarly, the employer will not be liable where the employee fails to update his medical records. This may require the employee to return to his health-care provider for an updated evaluation.

But, employers should proceed with caution in requesting documentation. The employer should explain why the documentation is insufficient, allow the employee to provide the information that is missing, and pay all costs associated with any mandated visits.

 

II. Who Chooses the Health-Care Provider?

The ADA does not prevent an employer from requiring an individual to go to an appropriate health professional of the employer’s choice if the individual provides insufficient information from his treating physician (or other health care professional) to substantiate that he has an ADA disability and needs a reasonable accommodation. If the documentation provided is insufficient, the employer should explain deficiency and allow the individual an opportunity to provide the missing information in a timely manner. Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation.

Any medical examination conducted by the employer’s health professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation. If an employer requires an employee to go to a health professional of the employer’s choice, the employer must pay all costs associated with the visit(s).

 

III. When May Certification Not Be Required?

An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that he has an ADA disability and needs the reasonable accommodation requested.

Prior Summer School Sessions:

ADA 101:  Who Is Covered?

ADA 102: What Does the ADA Require?

ADA 103: Reasonable Accommodation (part I)

ADA 103: Reasonable Accommodation (part II)

EEOC Files Retaliation Claim Against Verizon: How to Make Sure You're Not Next

Posted by Molly DiBiancaOn September 4, 2008In: EEOC Suits & Settlements, Harassment, Sexual, Retaliation

Email This Post | Print this Post

The U.S. Equal Employment Opportunity Commission ("EEOC") has filed suit against Philadelphia-employer, Verizon, alleging unlawful retaliation.  The complaint was filed on behalf of former service technician, Theresa Allen, who worked at the company's Bryn Mawr facility until last year.  Allen, who is in her 50s, was the only female employee at that location until October 2006. 

According to the EEOC's complaint, Allen was sexually harassed during the 21 years of her employment by being exposed to pornographic magazines, which were commonly left out in the open in the workplace.  She was also subjected to inappropriate physical contact. image

Philly.com reports that, in August 2006, Allen began to complain to management about the various offenses.  In September, Allen claims, after the conduct had not ceased despite her complaints, a plastic rat was hung in the service technician's garage.  She removed the rat but it reappeared several times.  Phrases like "Ratteri" and "Stop telling on everybody" were written in various places around the garage.  Allen was fired in February 2007, allegedly for taking home two cups of rock salt, which she claims to have later replaced with a 10-pound bag. 

Minimizing retaliation claims
There are a number of ways you can reduce your likelihood of being faced with a retaliation claim, including the following:

  1. Ensure that you have a policy prohibiting retaliation included in your harassment and discrimination policies.
  2. Make sure your policies clearly state that suspected retaliation must be reported, and provide employees several avenues through which they can do that.
  3. Train all supervisors and managers so they know that it's unlawful to retaliate against employees for protected activity. That includes formal charges of discrimination as well as internal complaints about harassment or discrimination.
  4. When you receive a complaint about unlawful activity or are charged with discrimination, protect the source of the complaint as much as possible. One of the best defenses to a retaliation claim is to be able to show that the person who supposedly retaliated wasn't even aware of the charge or complaint in the first place. Of course in many situations, the employee's immediate supervisor must be told about a complaint so that an adequate investigation can be conducted.
  5. Treat the complaining employee like nothing has changed.  Of course, filing a charge or internal complaint doesn't insulate the employee from future disciplinary action.

America's Workforce Wants to Know: Is Sarah Palin the Ultimate Work-Life Juggler?

Posted by Adria B. MartinelliOn September 4, 2008In: Newsworthy

Email This Post | Print this Post

America's workforce cares very deeply about the work-life positions of political candidates.  Shortly after Delaware's incumbent senator was named Democratic VP-nominee, I posted on Joe Biden’s track record on work-life issues affecting employers. And now that the Republican candidate has been announced, what does Sarah Palin, Biden’s republican counterpart, have to say?

We know that, like Biden, her personal life has forced her to experience first-hand work-life balance struggles. Some might say she’s managed the ultimate juggler, rising to governor, and potential Vice President, all while simultaneously raising a family of five, including an infant with Downs’ Syndrome. The Wall Street Journal noted that she’s “been portrayed as the very model of a working mother: She answers her BlackBerry while pumping breast milk for her infant; keeps a playpen by her desk; and manages a state while cooking caribou hot dogs for her family.”

But not all reports have portrayed her in such a positive light. Many have queimagestioned her choices for returning back to work 3 days’ after the birth of her youngest. That scrutiny has only intensified following the reports that Palin’s 17-year old daughter is 5 months’ pregnant. There has been much questioning of whether she’s balancing her government and family duties well, in light of the recent news she’s soon to be a grandmother. Interestingly, Biden has been widely hailed as the ultimate family man for making some very similar choices: to continue his political career in spite of family struggles and tragedies.

Beyond her personal life, however, little can be found on her position on relevant issues or pending legislation. As reported by the Wall Street Journal blog, “The Juggle,”  Palin's official Web site offers little information on her position on work-life balance issues, nor did an issues statement compiled during her gubernatorial campaign by the Anchorage Daily News.

An Associated Press article noted Democratic presidential candidate Sen. Barack Obama’s statement that Ms. Palin, like Mr. McCain, opposes the Fair Pay Restoration Act (Senate version of the House Bill known as Ledbetter Fair Pay Act).  That failed Senate bill would have reversed a Supreme Court ruling that a woman had only 180 days to file a formal complaint of gender-based wage discrimination. The McCain campaign told the AP that Mr. McCain and Ms. Palin support equal pay for women but want the 180-day filing period to remain in place.

As her role in the campaign evolves, I’ll be listening carefully to hear her position on other work-life issues such as: extended and/or paid FMLA leave, the EEOC’s Guidance on Caregiver Discrimination, and flexible leave polices, for starters.

10 Best Excuses for Being Late to Work

Posted by Molly DiBiancaOn September 3, 2008In: Just for Fun

Email This Post | Print this Post

In a recent survey by CareerBuilder.com, workers and managers were asked about the reasons offered by employees who arrived late their job.  We reported earlier in the week about the standard excuses for tardiness, including traffic and oversleeping. But what is really interesting are the not-so-standard excuses.

The 2008 Late to Work Survey gives the 10 most unusual excuses employees gave for arriving late to work. In comparison, I bet your excuses are pretty darn boring. Maybe these employees should be given at least some credit for their creativity. And, for the record, I can personally attest to the veracity of Excuse #8, which actually has caused me to be late for a relative’s birthday party recently.

1. While rowing across the river to work, I got lost in the fog.

2. Someone stole all my daffodils.

3. I had to go audition for American Idol.

4. My ex-husband stole my car so I couldn't drive to work.

5. My route to work was shut down by a Presidential motorcade.

6. I wasn't thinking and accidentally went to my old job.

7. I was indicted for securities fraud this morning.

8. The line was too long at Starbucks.

9. I was trying to get my gun back from the police.

I didn't have money for gas because all of the pawn shops were closed.

No Re-Application Provision Approved In Settlement Against State Agency

Posted by Molly DiBiancaOn September 2, 2008In: EEOC Suits & Settlements, Gender (Title VII), Retaliation

Email This Post | Print this Post

Three female attorneys filed suit against the New Jersey State Office of Attorney Ethics (“OAE”), alleging gender discrimination. The plaintiffs claimed that women were assigned to lower-grade positions than their male counterparts. According to the article on Law.com, males without law degrees, some without college degrees, were awarded higher ranked jobs than females with law degrees.

The suit was filed in March 2005 under the Equal Pay Act, Title VII of the Civil Rights Act and its state equivalent, the New Jersey Law Against Discrimination. The case settled in June and each of the three plaintiffs received $5,000 in back pay and a total of $135,000 in emotional-distress damages. This is a relatively small sum, especially given the number of plaintiffs and the involvement of a government defendant.

But what makes this settlement even more interesting are its conditions. The settlement agreement makes an express denial of wrongdoing by the defendants, which is not uncommon. Unlike suits settled with the Equal Employment Opportunity Commission, no remedial measures were required by the agreement, nor were the defendants required to implement any training programs or make any workplace postings.

Most significantly, though, are the provisions whereby the two plaintiffs who had resigned from their jobs during the lawsuit agree to never seek employment with the OAE. Last year, there was a bit of murmuring that the EEOC was going to take a formal position against such “banishment” clauses, also known as “no reapplication” or “no re-employment” provisions.

These provisions are of the highest importance to employers when settling a lawsuit brought by a former employee. If employers were prohibited from including this type of clause in settlement agreements, there would be a greatly decreased incentive to settle at all. Employers would risk the very real possibility that they’d pay a significant sum of money only to be taken “hostage” by an employee determined to inflict permanent suffering on his employer.

DOT Delays Implementation of New Drug and Alcohol Testing Procedures

Posted by Molly DiBiancaOn September 2, 2008In: Drug Testing

Email This Post | Print this Post

Last month, the Department of Transportation (DOT), announced that changes to its drug and alcohol testing regulations would go into effect on August 25, 2008. The new regulations amended and added to 49 C.F.R. Part 40, relating to adulterated, substituted, diluted, or invalid urine specimens. After complaints from the AFL-CIO’s Transportation Trades Department (TTD), though, the DOT has delayed the implementation of the new rules. The regulations will be open for comment submission for one month and are scheduled for their official debut in November—in whatever form they take at that point.

So what caused the sudden change of heart? The TTD, along with the Association of American Railroads, the American Short Line and Regional Railroad Association; the Teamsters, and the Air Transport Association, joined by the Regional Airline Association, asked the DOT to reconsider the portion of the new regulations that would make specimen validity testing (SVT) mandatory. The DOT considers mandatory SVT to be an important way to combat cheating on drug tests.

The objections related to the portions of the new regulations that expanded the use of direct observation (DO). In short, employees who previously received a positive test result for prohibited drug would now be required to provide urine specimens under DO. The DOT explains the proposed changes and the background of 

.

New Survey on Workplace Lateness Supports Flextime Initiatives?

Posted by Molly DiBiancaOn September 1, 2008In: Alternative Work Schedules, Flextime

Email This Post | Print this Post

15% of workers say they are late to work at least once a week and nearly 25% lie about the reasons why.  According to a new CareerBuilder.com survey, 2008 Late to Work Survey, 43% of managers say they don't mind if employees are late as long as their work is finished on time and done well.  Other managers, though, reported that they would consider terminating an employee who arrived late several times a year. 

When asked about the reasons for their tardiness, traffic was far and away the most common excuse, reported by more than 32% of employees surveyed.   17% reported that they had fallen back asleep and 7% pointed to a long commute.  27% of managers didn't buy it, saying they were skeptical of the excuses.

In light of these statistics, is there a case to be made for flexible-hour initiatives?  Obviously, certain jobs require adherence to a specific schedule and do not allow for employees to come and go as they please.  Customer satisfaction, for example, would not benefit from a customer-service department where the phones went unmanned because employees decided to arrive later in the morning.  But other jobs can be performed successfully with flexible hours.  As the saying goes, "If you can't beat 'em, join 'em!"  Is there some validity to that phrase in this context?

 

Why Top Performers Are So Hard To Please

Posted by Molly DiBiancaOn September 1, 2008In: Employee Engagement

Email This Post | Print this Post

Why are the best employees also the hardest employees to retain? In short, because they care the most and, in turn, are the most easily disappointed and frustrated. All-star employees have high standards. They demand a great deal from themselves and from others—including their employers. The details that the average employee may not even notice can become major sticking points for the best employee. 

In a survey of 1,200 U.S. Army rangers, Thomas Britt of Clemson University found that the obstacles to high performance such as work overload resulted in lower levels of morale and job satisfaction. These effects were greatest for the most highly engaged soldiers. “The most committed and personally invested rangers, the ones who ranked work-relevant values as the most important, ranked morale and job satisfaction lower in the face of insurmountable impediments.” In other words, the rangers who cared most about their work were the most demoralized when they were prevented from doing their best.

One of the most common source of frustration for high performers is insufficient resources, such as time, technology, and support staff. Unless they are given the tools that they need to do their work at an optimum level of quality, top performers will feel stymied and frustrated, causing them to leave the organization if not resolved quickly.

Another source of frustration is found in the type of work assigned. Everyone wants to do work that utilizes their strongest skills. But for top performers, this is critical. Top performers quickly become disengaged if assigned to work that someone else could do more effectively and efficiently. To prevent this, employers must assign the right type of work to their best employees. And this can be done only if you understand what the “right” type of work is. How is this accomplished? Only with frequent interaction, monitoring, and feedback. The employee may be able to tell you what he or she is best suited to do. But he may not. It may be that he needs some coaching and one-on-one guidance from his manager to be able to articulate the areas where his talents lie.

The Action Plan

Goal: Retention of the organization’s best performers.

Obstacle: Deeply rooted disengagement

Cause: Inability to perform work that utilizes the employee’s specific skill set.

Solution: Regular interactions with the employee to determine what aspects of his current workload give him the most satisfaction and what institutional roadblocks are preventing him from performing at his maximum level.