Archive for April, 2014

Company Fired Women Due to Complications From Pregnancy, EEOC Alleges in New Suit

I’ve been writing a lot lately about employers that refuse to hire women because they are pregnant. But it’s also important to remember that it’s also illegal to discriminate against a woman because of complications arising from pregnancy.

A national personal training company finds itself in legal hot water with the EEOC allegedly because it fired a physical trainer who was taking approved medical leave for complications caused by her pregnancy.

According to court documents,  the trainer properly notified managers of Custom Built Personal Training that she was experiencing complications and that her doctor recommended time off from work. She provided doctor’s notes to management to cover her absences, and the company’s own documentation revealed that she had been approved for medical leave.  However, Custom Built fired her, claiming the reason was job abandonment.

“The only ‘abandonment’ here was this company’s abandoning lawful and decent treatment of an employee who happened to be pregnant, the EEOC said.  As pregnancy discrimination charges continue to escalate, this issue continues to be a priority for the EEOC.”

Read more about the lawsuit.

Tackling Alcohol Abuse at Work

The fact that recreational marijuana use is now legal in a couple of states shouldn’t take our eyes of the ball of a known workplace demon–alcoholism. Here’s HR consultant Robin Paggi’s advice on how to spot alcohol abuse in your workers and how to respond to it.

Alcohol and Work Are a Deadly Combination

By Robin Paggi, MA, SPHR-CA, CPLP, CPC

The recent legalization of marijuana in Washington and Colorado has inspired much discussion about its impact on employers in those states and potentially others. However, there is a drug that has been legal for years that employers should really be concerned about, and that is alcohol.

According to the federal Substance Abuse and Mental Health Services Administration, about 14 million U.S. workers are substance abusers, and the majority of them (85 percent) abuse alcohol.

That’s a problem because, according to Robert J. Grossman, author of the article “What to Do about Substance Abuse,” substance abusers are “three-and-a-half times more likely to cause accidents at work and in transit.” Additionally, substance abusers use more sick days than their co-workers (an average of 45 percent) and “their health care costs are double their peers’.”

In a survey conducted by the National Institute on Alcohol Abuse and Alcoholism, 60 percent of respondents said that their companies are “tough” on illegal drugs but “soft” on alcohol. Additionally, more managers and supervisors actually reported drinking during the workday and at company functions than other employees.

Perhaps it is because alcohol is legal and socially acceptable that employers tend to put less importance on its negative impact at work. According to the Office of National Drug Control Policy, “many companies do not have alcohol policies; those that do may not enforce them effectively.” Those companies should know that one in five workers (in a George Washington University survey) reported they had been “injured or put in danger on the job because of a colleague’s drinking, or having to work harder, redo work or cover for a co-worker as a result of a fellow employee’s drinking.”

The information above suggests that employers might benefit from becoming more knowledgeable and/or proactive about alcohol abuse. According to John Pompe, manager of disability and behavioral health programs at Caterpillar Inc., “Alcohol- and substance-related problems present a clear threat to employers in terms of productivity loss, safety, employee engagement, use of supervisory time and health care costs. The problem is that most employees with substance abuse problems go unrecognized and even more go untreated.”

What should employers look for? According to The American Council for Drug Education, symptoms of alcohol abuse include:

  • Frequent, prolonged, and often unexplained absences
  • Involvement in accidents both on and off the job
  • Erratic work patterns and reduced productivity
  • Indifference to personal hygiene
  • Overreaction to real or imagined criticism
  • Overt physical signs such as exhaustion or hyperactivity, dilated pupils, slurred speech, or an unsteady walk.

 How should employers treat alcohol abuse? The Occupational Safety & Health Administration suggests a comprehensive drug-free workforce approach that includes five components:

  • a policy,
  • supervisor training,
  • employee education,
  • employee assistance, and
  • testing.

According to OSHA, such programs, especially when testing is included, must be reasonable and take into consideration employee rights to privacy. Additionally, some states, such as California, require employers to reasonably accommodate employees who wish to voluntarily participate in a drug or alcohol rehabilitation program.

Employers do their employees as well as themselves a favor by addressing every kind of substance abuse in the workplace, because every kind of drug use is a threat to everyone involved, regardless of whether it is illegal or not.

By Robin Paggi, MA, SPHR-CA, CPLP, CPC.

Robin last wrote for this blog on the advantages of hiring older workers.


Bed Bath & Beyond Alters Criminal Conviction Rule in Settlement With NY Attorney General

Being a convicted felon will no longer be an automatic disqualifier for a job with Bed Bath & Beyond, at least in New York.

The state attorney general announced last week that the national retailer had agreed to drop its policy of never hiring a convicted felon, following an investigation that uncovered the fact that at a job fair the company announced that it didn’t hire persons with felony records, even if they had been rehabilitated.

Problem is that stance violated the requirement under a New York statute to consider each applicant’s individual circumstances in deeming whether a criminal conviction rules out employment.

That individualized consideration must include factors such as the nature and gravity of the criminal conviction and what bearing, if any, it has on any specific responsibilities of the particular job. Other factors include the time elapsed since the conviction, the applicant’s age when the crime occurred, and whether the person has been rehabilitated.

As part of the settlement of the investigation, the company agreed to pay $125,000, including $40,000 for restitution awards to persons unlawfully denied employment under its no-convictions policy.

BB&Y has 62 stores in New York.

Here’s Attorney General Eric Scheiderman’s announcement of the settlement.

Court: ADA Violated When Employer Withdrew Job Offer Over Worker’s Past Medical Condition

Another reminder that the ADA requires employers to base hiring decisions on an applicant’s current  condition–not concerns over a past condition.

Two years ago I wrote about a lawsuit that the EEOC had brought against a Florida-based manufacturing company where the issue was its firing of an engineer because he did not produce medical documentation for an old medical condition.

In this case, the company took back its offer of a permanent job to Michael Matanic because he did not provide a  medical release relating to a six-year-old successful back surgery. According to the EEOC, this was an ADA violation because, the company, American Tool & Mold Inc., had essentially fired him based on the perception that he was disabled.

Last week, a federal district court in Florida sided with the EEOC on the merits of the case. The court’s holding speaks to the limits of the discretion the ADA allows an employer to withdraw a job offer based on the results of a pre-employment medical exam. The employer can do this only if an “individualized determination” shows the impairment will preclude the job applicant from performing the job’s essential functions.

The company argued that without the old medical documentation it had know way of knowing whether Matanic was still subject to work restrictions that would prevent him from performing the job. But the court said that the company had never performed that individualized assessment and didn’t know which job functions were essential for the job. Thus, a win for the EEOC.

Stuck in the Forest: Company Debarred Over Labor Law Violations on Federal Property

Debarring a company from doing business with the federal government is the most serious weapon in the government’s arsenal to enforce labor laws against that sector of the economy. But that’s what the U.S. Department of Labor did this week against a company that was doing a reforestation project for the government in the Superior National Forest in Minnesota.

According to the DOL’s announcement, Garcia Forest Service violated the McNamara-O’Hara Service Contract Act and the Contract Work Hours and Safety Standards Act by failing to pay fringe benefits, minimum wage, overtime and holiday pay to workers hired for the reforestation project.

Evidently the violations affected mostly immigrant workers, since DOL said that Garcia had primarily used the H-2B Visa Program to recruit and employ foreign guest workers to perform seasonal work under its contracts.

The debarment order means the company can’t apply for any new federal contract work for 3 years. The company and its president, Garcia, cooperated fully with the Wage and Hour Division during its investigation and subsequently paid 12 workers $27,489 in back wages, DOL said.

Read more.

Vet Denied Reasonable Accommodation for PTSD-Related Condition, EEOC Alleges

As more military veterans filter back into the civilian workforce following the winddown of the wars in Iraq and Afghanistan, employers are going to have to deal with the fallout from combat, which may include a veteran experiencing post traumatic stress disorder. This could include excusing veterans from work for short periods to deal with their disability.

A company that manufactures pipe fittings, EZEFLOW USA, botched its duty under the ADA to consider an accommodation for a returning veteran, the EEOC charged in a lawsuit filed this week. In this case, the EEOC alleged, a veteran who suffered seizures caused by PTSD asked for six weeks of unpaid leave to deal with the situation.

He supported that request with a doctor’s note requesting that much time off and that he not drive, avoid heights, and not work with heavy machinery.

But because he was in his probationary period at work, the company fired him instead of accommodated him. According to the EEOC, the company had a policy of granting up to 26 weeks of unpaid leave to nonprobationary employees.

The EEOC faulted the company for not doing the “decent” thing, but also the legal thing– giving a qualified veteran with a disability a reasonable accommodation.

Read more about the case.

Pregnancy Bias Is Form of Sex Discrimination Under State Law, Florida Supreme Court Holds

Finally there’s some good news about pregnancy discrimination in employment: The Florida Supreme Court just declared it to be an illegal practice in that state. Sometimes it takes judges to fill in an omission in the law that the legislature may or may have not left there intentionally.

According to the state’s highest court, the Florida Civil Rights Act, which makes it an unlawful employment practice for an employer to discriminate based on an individual’s sex, includes discrimination based on pregnancy, which is “a natural condition and primary characteristic unique to the female sex.”

So the former employee in this case, who worked for a company called Continental Group Inc. gets a renewed chance to press her claim of pregnancy discrimination.

If you are an employer in Florida, you’re now on notice that you can’t discriminate on the basis of pregnancy either under the state civil rights act or Title VII of the 1964 Civil Rights Act.

Regular Telecommute Might Be Reasonable Accommodation, U.S. Sixth Circuit Holds

The requirement of regular attendance at the workplace may go down the toilet–so to speak–as a result of a federal appeals court ruling today in the case of a Ford Motor Company employee who suffers from irritable bowel syndrome.

Positions that require a great deal work of teamwork are not inherently unsuitable to telecommuting arrangements, the Sixth Circuit said, reinstating the EEOC’s ADA lawsuit against the car company brought on the employee’s behalf.

Ford fired the employee from her job as a resale steel buyer after denying her request to be allowed to work from home four days a week as an accommodation for her IBS. The company argued that it was justified in firing her because she couldn’t satisfy the job’s attendance requirements.

What’s interesting about the case is that the Sixth Circuit had previously ruled, as have most U.S. appeals courts, that regular attendance generally is an essential job function.

But in a 2-1 ruling, the court’s majority said that the world has changed since those earlier opinions, and teleconferencing technologies unconceived of two decades are now commonplace. All the ruling means for now is that the EEOC gets to go to trial in the case.

But if the EEOC prevails on the merits, it could have ripple effects on telecommuting policies generally, causing employers to rein in them in so that employees don’t think they have a “blank check” to request work from home regardless of their jobs.

The case is EEOC v. Ford Motor Co., No. 12-2484.

New Fitness-for-Duty Exam Consistent With Returning Employee’s FMLA Rights, Court Says

There’s no interference with FMLA rights when an employee returning from FMLA leave is required to submit to a fitness-for-duty examination, as long as the requirements for such an examination under the Americans With Disabilities Act are met, according to an appeals court in California.

In this case a senior district attorney investigator returned to her job with the County of Los Angeles following FMLA leave for treatment of depression. Four months after her return, the county’s district attorney’s office ordered her to undergo a second fitness-for-duty examination.

The investigator sought an injunction from the court barring the county attorney from requiring her to undergo the re-exam or face discipline, arguing that the order violated her rights under the FMLA to be restored to her job.

But the appeals court wasn’t buying that argument. Because the investigator carries a weapon, the county can force her to submit to a re-exam to evaluate her mental health without showing that her job performance suffered,  it said.

Consistent with the ADA, the county has to pay for the re-examination and it must be job related and consistent with business necessity, the court held.

The case is White v. County of Los Angeles. Information on the case and link to the opinion is here.

This blog post was highlighted in Jon Hyman’s April 24 weekly round up of employment law blogs.


Office Supply Co. Settles Pregnancy Bias Case

If I never have to write about another case of pregnancy discrimination…then my blog will be a lot shorter.  Like a late night comic who’s always finding new material in the day’s events, cases of pregnancy discrimination keep a steady flow of blog material for me. It’s my duty to warn employers and HR staff of the dangers that lurk in this arena of the law.

Repeat after me: Title VII forbids denying a woman a job because she is pregnant! You must judge her qualifications as you would anyone else’s. If she is qualified for the job, you can only not hire her if someone else is more qualified. Otherwise, you’re likely to face a lawsuit.

Latest case in point: In January, the Equal Employment Opportunity Commission sued Benhar Office Interiors LLC, a New York-based office furnishing and architectural store in Manhattan, after learning that it had rejected a qualified applicant for a controller position shortly after finding out she was pregnant. “Benhar had interviewed the applicant multiple times, gave her positive feedback and extended a job offer through a staffing company. Soon after the staffing company informed Benhar’s president of the applicant’s pregnancy, however, Benhar refused to hire the applicant and later hired a non-pregnant applicant instead.”

Wrap it up and tie it all in a neat bow and you have a rather blatant instance of pregnancy discrimination, which the company to its credit settled for $90,000.

But it shouldn’t have gotten even that far, because as every employer should know, Title VII requires that pregnant applicants be given equal consideration to all other applicants, and that pregnancy must not factor into the employment decision.

If you need a refresher on pregnancy discrimination, the EEOC is happy to provide it for you, at this web address.

Read more about the case here.