Archive for February, 2012

Terminated Whistleblower Awarded $190K in OSHA Action; Gets Job Back Also

Firing a whistleblower has its costs, as an employer found out to its dismay when it fired a truck driver who complained about faulty brakes on his truck.

The Occupational Safety and Health Administration issued the ruling against Interline Logistics Group LLC, which terminated the driver after he reported safety violations about the brakes and refused to violate U.S. Department of Transporation rules on allowable driving and rest hours.

The agency ordered the company to reinstate the truck driver also awarded him $190,000 in back pay, compensatory and punitive damages, and attorney’s fees.

“This case sends a clear message that employers are simply not allowed to retaliate against workers for reporting work-related safety concerns or against drivers who refuse to violate DOT regulations that determine how many hours they are allowed to work and how much rest they receive,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “The safety of all workers and everyone on the road is endangered when employees are afraid to report safety concerns because of threats from their employers.”

Read more.

EEOC Clarifies Impact of ADA Amendments on Veterans With Disabilities

Employers and disabled veterans should now have a better understanding of what rights and obligations each has under the Americans With Disabilities Act.

In the wake of the ADA Amendments Act of 2008, the Equal Employment Opportunity Commission updated two publications designed to bring clarity to those issues.

Prior to that law, the ADA’s definition of “disability” was construed narrowly, significantly limiting the law’s protections, the EEOC pointed out.

The Amendments Act make it easier for veterans with a wide range of disabilities such as traumatic brain injuries and post-traumatic stress disorder to get needed reasonable accommodation that will enable them to work successfully, the EEOC said.

The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the ADA and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.

The updated publications are:

  • The Guide for Wounded Veterans, which answers questions that veterans with service-related disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look for civilian jobs. The publication also explains the kinds of accommodations that may be necessary to help veterans with disabilities obtain and successfully maintain employment; and
  • The Guide for Wounded Veterans, which answers questions that veterans with service-related disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look for civilian jobs. The publication also explains the kinds of accommodations that may be necessary to help veterans with disabilities obtain and successfully maintain employment.

Not an ADA Violation to Require High School Diploma, EEOC Says

Is it illegal under the Americans With Disabilities Act to require job applicants to have a high school diploma? No, according to a new series of questions and answers from the Equal Employment Opportunity Commission.

Last November, the EEOC issued an informal discussion letter about how the ADA applies to job qualifications standard. The EEOC said this engendered some confusion. So it recently came out with a Q and A designed to clear up such misconceptions.

The ADA only protects someone whose disability makes it impossible for him or her to get a diploma, the EEOC reminded.

However, if an applicant tells an employer she cannot meet the requirement because of a disability, an employer may have to allow her to demonstrate the ability to do the job in some other way.  This may include considering work experience in the same or similar jobs, or allowing her to demonstrate performance of the job’s essential functions.

But you have to hire someone whose disability prevents them from getting a diploma, the EEOC assures. “Even if the applicant with a disability can demonstrate the ability to do the job through some means other than possession of a high school diploma, the employer may still choose the best qualified person for the job.  The employer does not have to prefer the applicant with a disability over someone who can perform the job better.”

The EEOC also noted that this is not the first time that a high school diploma requirement has been questioned as a possible violation of employment discrimination law. The commission recalled that the U.S. Supreme Court addressed this issue in Griggs v. Duke Power Co. in 1971. In that famous case, it held  that a high school diploma requirement was discriminatory because it had a disparate impact on African Americans who had high school diploma rates far lower than whites in the relevant geographical area, and because the requirement was not job related for the position in question and consistent with business necessity.

The EEOC noted that in 2003, it brought a lawsuit on behalf of an employee with an intellectual disability who was fired from her job as a nursing assistant in a residential care facility when the employer adopted a requirement that nursing assistants have high school diplomas.  She had worked successfully in the job for four years and had several times tried to obtain her GED, but could not do so because of her disability.  Her GED instructors offered to work with the employer to find an alternative way to assess the employee’s ability to do the job, but the employer refused.  The employer settled the case with the EEOC.

So, bottom line employers–you can have a high school diploma requirement (or any other qualification standard, for that matter). Just make sure you have a valid business reason for it. And if you’re dealing with a person with a disability, give them a chance to show they could perform the essential functions of the job without a diploma.

Employers Accepting Online Degrees, Survey Finds

Degrees earned online now put job applicants in as good a stead as those earned the old-fashioned way–in traditional classrooms.

According to the Society for Human Resource Management, a growing number of HR professionals who were surveyed see individual courses taken online as “equally credible” to courses taken at traditional universities.

And a least for entry-level postions, an online degree credential is now acceptable.

Read more from SHRM on this topic.

Indiana’s New Right-to-Work Law: A Precedent or One Off?

Indiana’s recent passage of a right-to-work law has stoked speculation that other states might follow its lead.  The state became the 23rd state to enact right-to-work legislation–but the first do do so in the Rust Belt region.

Right-to-work laws make it illegal to force employees to join a union or pay union dues as a condition fo employment. Supporters of these laws tout them as an inticement for relocating businesses and keeping costs down.

Opponents say the allow nonunion workers to reap higher union-negotiated wages and benefits without sharing the costs, which over time undermines unions.

The Midwestern states are where unions flourished after World War II because of the concentration of manufacturing firms.

So Indiana’s experience may provide an interesting experiment in whether the right-to-work movement can catch fire where unions have historically been strong.

Read more about it in the Washington Post.

Report Details High Stress Facing Investment Bankers

Is being an investment banker bad for one’s health? Could be, according to a University of Southern California study to be published later this month.

The study says that the high stress and long hours of a job in investment banking can lead to “insomnia, alcoholism, heart palpitations, eating disorders, and an explosive temper.”

The USC study, which followed numerous bankers over a 10-year period, found that “by the sixth year, the participants [the bankers involved in the survey], now in their mid-30s, had split into two camps: the 60% who remained ‘at war’ with their bodies, and the remaining 40% who decided to prioritize their health, meaning they paid more attention to sleep, exercise and diet and set limits on how much they allowed work to consume them.”

The silver lining? Nearly half of the bankers figured out how to deal with the 100-hour workweeks, screaming bosses, and pressure to perform at a very high level by simply eating well, exercising, and not allowing work to swallow their entire lives.

But just to be on the safe side, investment banks might want to have employee assistance programs in place to give their stressed employees a place to blow off steam and seek counseling.

It also can’t hurt to dust off your workplace violence prevention program and make sure its adequate. Here are some tips on recognizing and preventing workplace violence.

Pennsylvania HRC Docks Employer $33,000 for Disability Discrimination

Employers that discriminate shouldn’t think that they will be let off easy by state fair employment practice agencies.

Latest case in point: The Pennsylvania Human Rights Commission in late January ordered a construction firm to pay a disabled worker $33,170 in lost wages, interest, and expenses. The employer, Gary Deimler & Sons Construction of Harrisburg, allegedly fired Larry Moyer Jr. from his job as a carpenter because of his disability, despite his demonstrated ability to perform his job duties.

The agency imposed the award after finding sufficient evidence to support the former employee’s complaint.

“Work is about ability, not disability,” said JoAnn Edwards, the commission’sexecutive director. “Basing a decision to fire someone on his disability is discrimination, and is illegal in Pennsylvania.”

Comment Period Extended on Proposed Rule to Protect In-Home Care Workers

The U.S. Labor Department has extended until March 12 the period for the public to submit comments on a proposed rule to provide minimum wage and overtime protections for nearly 2 million workers who provide in-home care services.

Currently,  workers classified as “companions” are exempt from the Fair Labor Standards  Act’s minimum wage and overtime pay requirements. When established in 1974,  such exemptions were meant to apply to casual babysitters and companions for  the elderly and infirm—not workers who chose in-home care service as a  vocation and were responsible for supporting their families. The proposal  would, if enacted, grant the exemption to households where the services are  provided but not third-party staffing agencies. It would further clarify that  companionship services are those directly related to the fellowship and  protection of a care recipient.

The division published a notice of proposed rulemaking in the Federal Register on  Dec. 27, 2011, with a comment period originally set to end on Feb. 27, 2012. On  Dec. 15, the proposed rule was announced by President Obama and posted on the  division’s website, giving the public more time than the standard 60-day period  to comment on the proposal. After reviewing requests for an extension from  members of Congress and the public, the division decided to extend the comment  period by 14 days to Monday, March 12.

Federal Government Should Do Better Job in Obeying USERRA

When it comes to complying with the nation’s employment protection laws, the federal government is supported to be the model employer. It’s supposed to set the standard that all others should try to match.

It seems the government has fallen down on the job when it comes to the right of returning military veterans to resume their careers in the civilian sector.

The Uniform Services Employment and Reemployment Act forbids employers from penalizing service members because of their military service. In short, they cannot disadvantage service members because of their time spent in uniform.

Yet, in some cases, the Post reported, the U.S. government has withdrawn job offers to service members unable to get released from active duty fast enough; in others, service members have been fired after services.

Major offenders include the Defense Department, Department of Veterans Affairs, the Department of Homeland Security, and the U.S. Postal Service.

Need a primer on USERRA? Try this from the U.S. Office of Special Counsel, which enforces the law.

OSHA Videos Educate Workers on Respirator Use

Employees may face respiratory hazards in a variety of industries and occupations. So it’s vital that employees in these situations know how to properly use their respirator,  and whether a respirator might be defective.

Fortunately, the Occupational Safety and Health Administration just posted a series of short videos on the topic–nine in English and eight in Spanish.

Read more here.