Archive for October, 2014

EEOC Catches Employer for Not Having Dialogue With Employee on ADA Accommodation

“Let’s talk about it.” These words should be displayed prominently in every HR department as a reminder that employers must enter into a dialogue with employees about their need for a reasonable accommodation for disabilities.

Not heeding that requirement can land the employer in hot legal waters. As witnessed what happened at a Minneapolis-based home health care provider, which the EEOC asserted failed to reasonably accommodate an employee who needed to use a cane because her walking was restricted because of several medical conditions.

As alleged by the EEOC, when supervisors at Baywood Home Care saw the employee using a cane, they informed the owner, who promptly fired her. The home never  engaged the employee in the “interactive process” to obtain information from her about her disability and the need for information, the EEOC charged.

The EEOC announced yesterday that Baywood had decided to settle the case, paying $30,000 and submitting to other relief, including training its managers on the ADA’s reasonable accommodation provisions and the interactive process requirement.

Which should stand as an object lesson to employers to take the ADA’s requirements seriously.

Or to put it in Halloween terms on this October 31-the trick is not overlooking the ADA requirements; the treat is not being sued by the EEOC.

Read more about the case and settlement.

 

NLRB Affirms Norton Ruling, Declaring Employers Can’t Bar Employees From Filing Suit

If your company is attempting to enforce a mandatory arbitration clause that makes employees give up their right to file a lawsuit, expect continued resistance from the National Labor Relations Board.

Earlier this week the full board affirmed a 2012 ruling, known as the D.R. Horton case, that such clauses violate employees’ rights under the National Labor Relations Act, which protect employees’ rights to take collective action.

Subsequent to that 2012 ruling, the Fifth Circuit held that such arbitration agreements were enforceable, as the NLRB “did not give proper weight to the Federal Arbitration Act” in holding the agreement unenforceable.

In a 3-2 vote, the full board this stuck to the D.R. Horton principle going forward.

You can access the board’s ruling here.

EEOC Settles Lawsuit on Behalf of Women at Construction Project; $215K Owed in Damages

How not to treat women: The way that a construction contractor on a project in New York City did, according to the Equal Employment Opportunity Commission.

The EEOC announced today that Vamco Sheet Metals, Inc. would pay $215,000 to settle a Title VII lawsuit challenging its treatment of female sheet metal workers on the massive John Jay College of Criminal Justice expansion in Manhattan from 2009 through 2011. According to the lawsuit, female sheet metal workers were fired for pretextual reasons, some after just a few days of work.

The suit also alleged that the women were treated unfavorably compared to men, including being assigned menial tasks like fetching coffee and having their breaks monitored. One new mother was denied a clean private place to pump breast milk.

This kind of behavior should have gone out of fashion long ago, but industries like the construction trade where men still dominate haven’t fully shed themselves of this plague.

Read more about the case and the settlement.

DOJ: Training Key to ADA Compliance

I commend for your reading a blog post on the U.S. Department of Justice website. The subject: The perils of not training your supervisors on employers’ duty of reasonable accommodation under the Americans With Disabilities Act.

The post by Deputy Assistant Attorney General Eve Hill for the Civil Rights Division recounts the experiences of a former Parks Maintenance Crew Leader with the city of North Las Vegas.

The condensed version of the story is that the ex-city employee, dubbed Mr. D. in the blog, has limited vision in one eye. The employer reasonably accommodated him for years, but then his new supervisor “unreasonably withdrew the long-time accommodation Mr. D needed to do his job and, as a result, he was forced out of work.”

Subsequent to his promotion to crew leader, even though the actual duties of the job didn’t change, the licensing requirements for the job were changed to include a commercial driver’s license. Except that Mr. D., because of his impairment, couldn’t qualify for a commercial driver’s license.

That was no problem at first as the city granted Mr. D an exemption from the requirement.

But eight years later, a new manager took over and told Mr. D. that he had to get a commercial driver’s license or face disciplinary action.

From the blog: “Mr. D. told the new manager about his accommodation because of his visual disability, and even got a new letter from his doctor to give to the manager.  In response, Mr. D. alleged, the manager again told Mr. D. he had to get the commercial driver’s license or face disciplinary action.  Fearing that he would lose his job and his pension, which he would be entitled to after only one more year of working for the city, Mr. D. felt forced to take an early retirement and paid out of pocket into the retirement system for his last year.”

The story had a happy ending, as the city, learning it faced a DOJ lawsuit, agreed to pay Mr. D. back the money he paid into the retirement system and compensate him for his emotional distress.  The city also agreed to train its supervisors so they understand their obligations under the ADA to help ensure that all employees with disabilities will be treated fairly.

This is a story about how a public employer strayed from the correct ADA path–but there is a lesson here for all employers.

Train your supervisors on the ADA!

Read the entire blog entry.

Half Million Dollar Award in Sexual Harassment Suit Against Physician Outsourcing Company

Sexual harassment can be costly–not just for the victims but also for the perpetrators.  A federal jury made this last point emphatically when it awarded the victims of harassment at a physician outsourcing company almost half a million dollars for harm they suffered as the result of a hostile work environment and retaliation.

According to evidence in the case, the victims not only were subject to a hostile work environment, but their complaints to HR went unanswered and they were fired for complaining.

The jury awarded $250,000 to a former executive assistant for sexual harassment committed by the division CEO, while two other fired workers were awarded $82,000 and $167,000 respectively as compensation for wages lost when the fired in retaliation for their complaints.

Read more about the verdict and damages.

EEOC: Walmart Violated ADA in Not Allowing Applicant to Take Alternate Drug Detection Test

The Americans With Disabilities Act permits employers to make a job offer conditional on the applicant submitting to a drug screen, but employers must provide an alternative screening if the applicant can’t do the screening the employer prefers.

A Wal Mart store in Cockeysville, Maryland, that insisted that a job applicant take a urinalysis is now on the hook for $72,500 because of its stubbornness in not allowing the applicant–who suffered from end renal diseases and thus could not produce urine–to take another type of drug screening that would have achieved the same ends of making sure that the applicant was drug-free.

After learning of her disease, the assistant store manager told her to ask the designated drug testing company about alternate tests, the EEOC said. According to the complaint, Jones went to the drug testing facility the same day and learned that the facility could do other drug tests if the employer requested it. Jones relayed this information to the Walmart assistant store manager, but management refused to order an alternative drug test. Jones’s application was closed for failing to take a urinalysis within 24 hours.

In addition to the monetary relief, Walmart also agreed to revise it applicant drug screen form to advise applicants that alternate drug screens will be available as a reasonable accommodation for applicants to whom a conditional offer of employment has been made in the Cockeysville store, whose physical condition prevents them from producing urine and how to request a reasonable accommodation. Wal-Mart also will provide training on the ADA and the revised drug screen form to its market and regional human resources directors, as well as to people with hiring responsibility at the Cockeysville store.

So an important lesson for all employers–don’t back yourself into a legal deadend when testing for drugs, or it will cost you in the end.

Read more.

 

D.C. Suburb Considering Law to Restrict Employers From Asking About Criminal Records

Employers would have to wait until after the initial interview to ask a job applicant whether he or she has a criminal record, under legislation that a large Washington, D.C. suburb is considering.

Prince George’s County–a suburb in Maryland east of the nation’s capital–could become the latest local government to pass “ban the box” legislation giving applicants with a criminal record a better shot at being hired.

Some 13 states and 60 local have instituted similar laws.

Under the law that the PG Council is considering, emergency management and public safety agencies would be exempt. The restrictions also would not apply to jobs that require care or services to minors or vulnerable adults. Employers also could make more extensive inquiries about criminal background where the employee has access to money or personal or proprietary information.

Illinois has a similar law under which employers can’t ask applicants about any criminal convictions until after the initial interview.

EEOC Obtains Jury Verdict for One-Armed Guard

Add another notch to EEOC’s belt of victories under the Americans With Disabilities Act; a jury has agreed with the commission that a Florida security company violated the ADA in firing an employee allegedly because he wouldn’t wear a prosthetic arm and then retaliated against him when he complained.

The EEOC filed this lawsuit back in February 2013.  As I wrote then, the EEOC alleged that Alberto Tarud-saieh applied for a position as a security officer with Florida Construction Security Services in July 2010.  FCSS hired Tarud-saieh for a driving post, and he was responsible for driving around a community association in a security vehicle.  Following his first day of work, however, the president of the community association called FCSS and complained that FCSS had sent them a one-arm security officer.  Although Tarud-saieh does not need his prosthetic arm to perform his job, and although FCSS never instructed him to wear it, FCSS removed Tarud-saieh from the position immediately.  Further, once Tarud-saieh filed his discrimination charge, FCSS refused to assign him to another position, the EEOC said.

The jury awarded Tarud-saieh $35,922 and the EEOC said it will seek further relief against the company.

Read more about the verdict.

EEOC: Farm Harassed Women Employees

Our economy no longer is dominated by agriculture, as it was before the Industrial Revolution, but for those who toil in the fields working conditions can often be frightening. A lawsuit filed today by the Equal Employment Opportunity Commission looks to send a message that our civil rights laws protect farmhands just like any other employees.

County Fair Farm, a farm and produce wholesaler located in Jefferson, Maine, stands accused of violating Title VII of the 1964 Civil Rights Act by creating and maintaining a sexually hostile work environment for female farmworkers since 2003.

The harassment, according to the EEOC, consisted the womens’ supervisors and co-workers repeatedly groping and propositioning them for sex and directing  lewd comments at them about their bodies. And the farm failed to take action to stop the harassment and in the case of one victim the harassment intensified and she was fired after complaining, the EEOC charged.

“Farmworkers are particularly vulnerable to discrimination and harassment,” said Robert D. Rose, regional attorney for the EEOC’s New York District Office. “They are entitled to the full protection of our laws, and the EEOC will vigorously enforce those laws when farmworkers are targets of abuse.”

Read more about the case.

Friendships at Works: Do’s and Dont’s

Here’s resident columnist Robin Paggi with some sage advice on handling friendships at work–and how employees and employers can profit from socializing in the workplace. And on keeping socializing from getting out of hand and interfering with work.

Friendships at Work

“Without friends, no one would want to live, even if he had all other goods.” Aristotle wrote this sentiment, and I couldn’t agree more.

For example, I recently met a friend for coffee, and my day was brighter as a result because my friend did what he always does: listened intently to my account of my recent mishaps, offered supportive comments, and made me feel better about life in general.

According to social psychologists, my mental and physical wellbeing can be attributed in part to my friend and others like him in my life. Dr. Karen Dill, author, social psychologist, professor at the Fielding Graduate University, and blogger for Psychology Today said such friendships are important because they “fill our need for belonging. Our friends give us someone with whom to discuss our ideas, beliefs, and problems. These are needs that we can’t meet on our own.”

Obviously, friendships are important, and recent research indicates that having friends at work is vitally important. According to the study, “Work-based predictors of mortality: A 20-year follow-up of healthy employees,” published in the May 2011 issue of Health Psychology, employees with “high levels of peer social support” tend to live longer.

Work-based friendships are also beneficial to employers, according to Tom Rath, author of Vital Friends: The People You Can’t Afford to Live Without. Based in part on research conducted by The Gallup Organization, Rath’s book indicates that an employee with a best friend at work is seven times more likely to be engaged with that work, which is good for business.

Of course, there are drawbacks to workplace friendships.

For employers, the workplace can suffer because employees might spend too much time socializing instead of working; co-workers sometimes cover for each other’s inappropriate behavior (e.g. clocking in or out for the other); supervisors who are friends with their subordinates are sometimes more lenient with them, which creates a sense of unfairness; and a variety of other issues.

For employees, too much or inappropriate socializing at work can negatively impact their professional image; covering for a co-worker’s inappropriate behavior can result in being disciplined; the end of a friendship with a co-worker can negatively impact the work environment for them and their co-workers; and the list goes on.

So, how should employers and employees approach friendships at work?

Employers should recognize that a certain amount of office camaraderie is good for business; therefore, they shouldn’t necessarily put a damper on small doses of personal chit-chat and harmless joking around. However, employers should let employees know when it appears that their interpersonal relationships are interfering with productivity and/or professionalism and even intervene if necessary.

Additionally, numerous experts caution employers and supervisors from becoming too friendly with their subordinates. In her article, “Employers, Employees and Friendship: Can Managers be Friends With Employees?” HR consultant Kate Russell says that, “It is prudent to set boundaries. I advise managers to distance themselves a little. Be friendly, but not friends.” In her article “Boss-Employee Friendships,” Amanda Vogel advises that if “a friendship with an employee even remotely compromises what’s best for business or your success as a manager, it’s time to cut ties.”

Employees would do well to follow the advice from the article, “The Dos and Don’ts of Workplace Friendships” on the Workplace Insights website:

Do:

  • use your breaks to socialize instead of constantly chatting throughout the day,
  • stay focused on your work so you don’t lose sight of the things that need to be accomplished,
  • practice respect and professionalism by refraining from gossiping about co-workers with your work friend.

Don’t:

  • continuously pick up the slack for your work friend,
  • share everything about yourself in case the friendship sours,
  • be exclusive by spending all your time with your friend.

Thus, friendships at work are good for everyone involved, as long as they don’t interfere with work.

Robin Paggi is the Training Coordinator at Worklogic HR.

Robin’s last column was on keeping and maintaining employment records.

Before that, she wrote for this blog on the topic of fashion rules do’s and dont’s.

She has also written on making sure terminations are not related to romance.

For other prior columns by Robin appearing in my blog, click here, here, here, and here.