Archive for May, 2011

Bridge Worker With Fear of Heights Gets ADA Trial

Because a reasonable jury could find that the Illinois Department of Transportation regarded a bridge worker as disabled because of his fear of heights, he is entitled to trial on his claim that his discharge and lack of reasonable accommodation violated the Americans With Disabilities Act, the U.S. Court of Appeals for the Seventh Circuit ruled in May.

Here’s an important excerpt from the opinion:

“After the March 23, 2006 panic attack above the Mississippi River, Miller was formally diagnosed with acrophobia. IDOT immediately precluded him from performing any task required of the bridge crew, even tasks that could be performed from the ground let alone from a secure, unexposed height. IDOT forced him on nonoccupational disability leave and exaggerated the relatively modest effects of the acrophobia. Even after two psychiatrists cleared him for work without any significant restrictions, IDOT continued to preclude Miller from returning to any and all tasks performed by the bridge crew. According to the record, those tasks included everything from the maintenance and operation 14 of vehicles and equipment to spreading salt and gravel,cutting grass, and directing traffic. In other words, IDOT treated Miller as though he was unable to perform awide range of jobs. A reasonable jury could find from this evidence that IDOT regarded Miller as disabled by his acrophobia under the law before the 2008 amendments.”

Those amendments didn’t take effect until 2009, but under them a person may be “regarded as” disabled if the person “has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

The court also decided a jury should determine whether Miller had the right to his requested accommodation that other members of his crew substitute for him when a task required working above 25 feet in an exposed or extreme position.

To read the opinion, click here. To get one employment lawyer’s take on the decision, go here.

Women Still Have Ways to Go in Federal Workforce Wages and Promotions

Female employees in the U.S. government still lag behind men in promotions and wages, according to two reports issued last week.

It’s a good news, bad news situation. Women make up almost a third of the Senior Executive Service, up from 11 percent in 1990 and they account for 44 percent of the government’s professional and administrative jobs in 1999, up from 12 and 20 percent, respectively, in 1976. That was the finding of the U.S. Merit Systems Protection Board.

“Those salary differences cannot be fully explained by differences in measurable factors such as experience and education,” the report said.

Meanwhile, the Partnership for Public Service, in a report prepared with the consulting firm Deloitte, showed gender differences in men’s and women’s satisfaction with their work in government. For example, among managers, women’s satisifcation rates with their work-life balance, fell 2.4 percentage points behind those of male managers.

But the median salary for women in professional and administrative jobs  was 93 percent of that of men in 2009–an improvement over the 83 percent in 1991–but a gap nonetheless.

Quarter Million Dollar Verdict Handed Down in Female Firefighter’s Harassment Case

Need further proof that sexual harassment can cost an employer plenty? Look no further than last week’s verdict against the Fairfax County and Rescue Department in suburban Northern Virginia. A jury ruled that the department was liable for sexual harassment of female firefighter Mary Bland, who put up with repeated harassment by her male supervisor.

The department reprimanded the supervisor and ordered him to stay away from Bland. But that proved ineffective.

Now, it is true that some workplaces are inhospitable to women. Police and fire departments for decades were male bastions. But that is changing, and employers need to get up to speed on their legal obligations to ensure a discrimination-free workplace.

Harassment can happen anywhere, so all employers need to be vigilant. They must have effective procedures in place for employees to report suspected instances of harassment, and have effective responses that put an end to such behavior.

Here are some recommendations on handling sexual harassment.

IRS Sends Questionnaires to Colleges and Universities Re Their 403(b) Plans

Courtesy of the E is for ERISA blog comes news that the Internal Revenue Service has launched a pilot project to give colleges and universities the opportunity to identify and correct problems in their 403(b) retirement plans.

IRS’ Employee Plans Compliance Unit is in the process of sending over 300 written questionnaires to a random sample of small, medium, and large institutes of higher education, including private and public colleges, universities, and trade and vocational schools.

The questionnaire – on IRS Form 886-A – contains 18 separate questions but mainly focuses on one issue: whether the organization’s Section 403(b) plan satisfies the “universal availability” (UA) requirement. Under that rule, if one employee has the opportunity to defer a portion of salary under the plan, then generally all employees must be offered the same opportunity.

According to an excerpt from the IRS webpage describing the project:

“The information gathered from this project will ultimately result in a report issued by the IRS describing responses and identifying  areas where additional 403(b) education, guidance, and outreach is needed and how we can focus enforcement efforts to address and/or avoid non-compliance in UA and new plan document requirements for organizations involved in higher education.”

Read more here.

U.S. Supreme Okays Arizona Law Denying Business Licenses to Contractors That Employ Undocumented Workers

Arizona can lawfully deny contractors a business license for a second violation of the state’s law prohibiting employment of undocument workers, a split U.S. Supreme Court today.

At issue is the Legal Arizona Workers Act of 2007, which passed over the opposition of business groups and civil rights organizations. Writing for the 5-3 majority, Chief Justice Roberts said that the law “falls well within the confines of the authority Congress chose to leave to the states.”

Next up for the court: Arizona’s law requiring police to check the immigration of people they lawfully stop and who they suspect are in the U.S. illegally. That law is on hold following a ruling by the U.S. Court of Appeals for the Ninth Circuit that it interferes with Congress’s power to make immigration policy.

Here’s the full text of the decision in Chamber of Commerce v. Whiting.

SEC Whistleblower Rules Herald New Day For Reporting Corporate Crime

Employees who blow the whistle on suspected corporate wrongdoing under federal securities laws will qualify for a financial reward from the U.S. government if certain requirements are met, under new rules adopted by the Securities and Exchange Commission today.

The long-anticipated rules, adopted under a provision of the financial reform law, otherwise known as Dodd-Frank, set up a rewards system for persons who provide information to the SEC relating to a possible violation of the securities laws that has occurred, is ongoing or is about to occur.

The following wording is taken directly from an SEC fact sheet explaining the rules:

To be considered for an award, the final rules require that a whistleblower

Voluntarily provide the SEC …

  • In general, a whistleblower is deemed to have provided information voluntarily if the whistleblower has provided information before the government, a self-regulatory organization or the Public Company  Accounting Oversight Board asks for it directly from the whistleblower or the whistleblower’s representative.

… with original information …

  • Original information must be based upon the whistleblower’s independent knowledge or independent analysis, not already known to the Commission and not derived exclusively from certain public sources.

… that leads to the successful enforcement by the SEC of a federal court
or administrative action …

  • A whistleblower’s information can be deemed to have led to a successful enforcement action if:
    1. The information is sufficiently specific, credible and timely to cause the Commission to open a new examination or investigation, reopen a closed investigation, or open a new line inquiry in an existing
      examination or investigation.
    2. The conduct was already under investigation when the
      information was submitted, and the information significantly contributed to the success of the action.
    3. The whistleblower reports original information through his or her employer’s internal whistleblower, legal, or compliance procedures before or at the same time it is passed along to the Commission; the
      employer provides the whistleblower’s information (and any
      subsequently-discovered information) to the Commission; and the employer’s report satisfies prongs (1) or (2) above.

… in which the SEC obtains monetary sanctions totaling more than $1

  • The rules permit aggregation of multiple Commission cases that arise out of a common nucleus of operative facts as a single action. These may include proceedings involving the same or similar parties, factual allegations, alleged violations of the federal securities laws, or transactions or occurrences.

The rules will go into effect 60 days after they are submitted to Congress or published in the Federal Register.

Read more about the rules on the SEC’s whistleblower rules page.

Perceived Disability: EEOC Wins Relief for Employee With Missing Fingers

Employers need to be careful when making hiring decisions that they don’t deny a job to a qualified individual because of a perceived disability. What matters is whether the person can do the job with or without a reasonable accommodation. Using a perceived disability as a deciding factor violates the Americans With Disabilities Act.

That point was driven home today when the Equal Employment Opportunity Commission announced it has obtained monetary relief on behalf of a North Carolina man who was offered a job at a copper tubing manufacturer, showed up for work, but then had the job taken away from him when the company’s hiring official saw that he was missing two fingers on his left hand.

The official assumed–wrongly–that the man couldn’t do the job of being a caster. So now the company, KobeWieland Copper, has agreed to pay $84,750 and provide other relief to settle the EEOC’s ADA lawsuit against it.

Read more on what not to do.

This post picked up by the Northwest Harold newspaper in the Midwest.

Medical Costs Expected to Rise One-Half Percent in 2012, Report Says

Expert a one-half of one percent increase in medical cost trend in 2012 compared to 2011, from 8 percent to 8.5, says a new report from PricewaterhouseCoopers. The study by the company’s  Health Research Institute cites a number of factors for the increase.

“An interesting blend of reactions to the recession, the slow recovery, health reform, and other variables are factored into the medical cost trend in 2012,” a summary of the report says.

To download the report, Behind the numbers – Medical cost trends for 2012, click here.

EEOC’s Subpoena Power Virtually Unlimited, Appeals Court Says

The Equal Employment Opportuninity Commission, the main federal agency that enforces employment discrimination law such as Title VII of the 1964 Civil Rights Act, has the power to subpoena “virtually any material that might cast light on the allegations against the employer.”  That’s according to the U.S. Seventh Circuit in a recent  ruling (EEOC v. Konica Minolta Business Solutions USA., Inc., No. 10-1239 (7th Cir. April 29, 2011).

In that case, the plaintiff, an African American employee, filed a charge alleging discrimination in connection with her termination. As part of its investigation, the EEOC issued a subpoena that called on the employer to turn over information on its hiring practices — which seems far afield from the subject of termination.

But the appeals court upheld the subpoean against a motion to quash it, concluding that the EEOC had a “realistic expectation rather than an idle hope” that hiring materials would illuminate the circumstances surrounding the plaintiff’s charge.

Here’s a prominent law firm’s take on what the decision means and a possible silver lining for employers.

Yankee Stadium Food Servers Claim They Are Owed “Service Charges”

The hospitality firm that runs the food service for customers in the expensive seats at Yankee Stadium is illegally denying waiters 20 percent service charges on items purchased, a lawsuit filed in federal district court in Manhattan alleges.

The menus in the seats’ cup holders states “a 20% service charge will be added to the listed prices. Additional gratuity is at your discretion.”

The servers filed suit against Volume Services America, which ran food services at the old Yankee Stadium and Legends Hospitality, which runs them in the new stadium.

The workers earn $35 a day, plus 6% of sales, which amounts to about $7,000 over the course of a 6-month baseball season, their lawyer, Brian Schaffer said.

crain’s has more information on the lawsuit.