Archive for July, 2017

Talent Versus Experience: Which Factor Should Win Out When Deciding Who to Hire for the Job?

Hiring based on talent or experience isn’t necessarily an either-or choice. The desire to grow should be evident in both cases, says our regular HR guest blogger Robin Paggi.

Talent vs. Experience

If you’re trying to decide whether it’s better to hire people because of their natural
talent or their job experience, Googling quotes by famous people on the subject
will not give you a definitive answer. You’ll find sayings like, “I’d rather have a
lot of talent and a little experience than a lot of experience and a little talent”
(attributed to UCLA basketball coach John Wooden, who won ten NCAA national
championships) and “Talent is cheaper than table salt. What separates the talented
individual from the successful one is a lot of hard work” (supposedly said by
award-winning best-selling author Stephen King).

In his article, When to Hire Raw Talent vs. Job Experience, CEO and Founder of
Khorus Software Joel Trammel said hiring based on experience is best when filling
a leadership position because, “If this person has no experience managing others, it
will be difficult for him or her to build and guide a team.” He also suggests hiring
someone with experience when you need specialized knowledge for things your
organization doesn’t know how to do or doesn’t do well. Hiring based on talent is
best for just about any other job in which the new employee will be added to others
performing the same job following clear processes and procedures.

Zane Smith, Executive Director of the Boys & Girls Clubs of Kern County, said
that hiring based on talent is best for most of the positions in that organization.
When be became the ED twenty-one years ago, Smith managed seven employees
at one location. Now he is in charge of 550 employees at 63 locations throughout
Kern County and one in Barstow. Much of the Clubs’ success is due to the people
who work closely with its members, so Smith and his managers are choosy about
whom they hire. While education and experience are important, being talented
more often tips the scale in the applicant’s favor.

“Applicants for hip-hop instructor should be able to impressively ‘bust a move’ at
the interview; applicants for art instructor should be able to pick up a drawing
element and create an inspiring work of art; and, applicants for resource
development staff should be able to role play a major gift ask with finesse.
Although we value work experience when it comes to making decisions that will
directly impact our children, we tend to place a higher priority on talent that can be
developed and expanded with training,” said Smith.

According to Claudio Fernandez-Araoz, senior adviser at executive search firm
Egon Zehnder, a person’s ability to be developed and expanded through training is
called “potential” and that is what’s most important when making hiring decisions.
Author of the book, It’s Not the How or the What but the Who, Fernandez-Araoz
said in a recent Harvard Business Review article that, “organizations and their
leaders must transition to what I think of as a new era of talent spotting – one in
which our evaluations of one another are based not on brawn, brains, experience,
or competencies, but on potential.”

After spending 30 years tracking and studying the performance of executives,
Fernandez-Araoz concluded, “The question is not whether your company’s
employees and leaders have the right skills; it’s whether they have the potential to
learn new ones.”

How can you tell if someone has potential? Assess whether they are motivated,
curious, insightful, engaging, and determined during the interview process. Here’s
an important clue: “High potentials…show deep personal humility and invest in
getting better at everything they do,” said Fernandez-Araoz.

I’ve trained thousands of people over the last 20 years, and I think that wanting to
learn and improve is critical to success, regardless of the job being filled.
Experience is more important for some positions and talent for others; however,
the desire to grow must be prevalent in both cases. You can quote me on that.

Robin Paggi is the Training Coordinator at Worklogic HR.

She last wrote for us on Pets in the Workplace: Do’s and Dont’s and before that on  What We Wear at Work Matters, and before that on Too Old To Wear Jeans,  Cultural Diversity Workshops and before that Managing Five Generations at Work, before that on Accommodating Religious Beliefs and before that on Politics and Work and before that on Emojis-A Workplace Communications Menace and before that on Alcoholism and the ADA in Employment. To read her previous columns, search Paggi in the search box at the top of this home page.

 

DOJ Retreats on Sexual Orientation, Arguing It’s Not Sex Discrimination Under Title VII of ’64 Act

People in the LGBT community could be forgiven for feeling under siege this week.

First came President Trump’s tweet reversing policy on allowing transgenders to serve in the military.

Then came the news that the U.S. Department of Justice intervened in a Title VII lawsuit to argue that prohibited sex discrimination under the statute does not include sexual orientation.

This reversed the Obama Justice Department’s argument that sex discrimination does include discrimination on the basis of  person’s sexual orientation.

The lawsuit the DOJ intervened in was filed by a now-deceased sky-diving instructor who claimed he was fired by a company called Altitude Express because of his sexual orientation.

According to the lawsuit, the instructor, Donald Zarda, was fired after a female client’s boyfriend complained that Zarda had informed the client that he was gay, ostensibly “to mitigate any awkwardness that might arise from the fact that he was so tightly strapped to the woman,”

A federal district court judge in New York ruled that Zarda could file an employment discrimination complaint under New York law, but not under Title VII because it doesn’t cover sexual orientation discrimination.

Zarda appealed to the U.S. Court of Appeals for the Second Circuit, which upheld the dismissal of the Title VII lawsuit on the basis of circuit court precedent.

Zarda then appealed to the full appeals court, which has the case now and in which the DOJ filed its friend-of-the-court brief.

Web Form Coming Aug. 1 For Reporting Workplace Injury and Illness Data to OSHA

Although the Occupational Safety and Health Administration extended the deadline for submitting workplace injury and illness data, employers can get a jump start on how that data submission process will work.

OSHA will launch on Aug. 1, 2017, the Injury Tracking Application (ITA), the agency announced. The Web-based form allows employers to electronically submit required injury and illness data from their completed 2016 OSHA Form 300A. The application will be accessible from the ITA webpage.

Last month, OSHA published a notice of proposed rulemaking to extend the deadline for submitting 2016 Form 300A to Dec. 1, 2017, to allow affected entities sufficient time to familiarize themselves with the electronic reporting system, and to provide the new administration an opportunity to review the new electronic reporting requirements prior to their implementation.

The data submission process involves four steps: (1) Creating an establishment; (2) adding 300A summary data; (3) submitting data to OSHA; and (4) reviewing the confirmation email. The secure website offers three options for data submission. One option will enable users to manually enter data into a web form. Another option will give users the ability to upload a CSV file to process single or multiple establishments at the same time. A third option will allow users of automated recordkeeping systems to transmit data electronically via an application programming interface.

The ITA webpage also includes information on reporting requirements, a list of frequently asked questions and a link to request assistance with completing the form.

EEOC Files Title VII Suit Against Cafe Over Pants Requirement for Female Pentecostal Employee

We take a break today from disability discrimination cases to bring you news of a religious discrimination lawsuit filed against an employer who insisted on strict application of its dress code, at the alleged expense of an employee’s right to a religious accommodation.

Sleneem Enterprises, LLC, a franchise operator of Tim Horton’s Café and Bake Shop in Romulus, Mich., violated federal law by refusing to permit an employee to wear a skirt instead of pants in accordance with her religious beliefs, Equal Employment Opportunity Commission alleged in a lawsuit filed on June 19.

In its suit, the EEOC charged that employee Amanda Corley wore a skirt to work at the Tim Horton’s Romulus location instead of the standard uniform pants. She did so pursuant to her Pentecostal Apostolic faith. When she attempted to present a letter from her pastor explaining why she could not wear pants, management refused to accept the letter and informed her she was fired.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964 which requires employers to provide reasonable religious accommodations to employees. The EEOC filed suit (Case No. 2:17-cv-12337 in U.S. District Court for the Eastern District of Michigan) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking injunctive relief prohibiting Sleneem from discriminating against other employees who need religious accommodations in the future as well as lost wages, compensatory and punitive damages and other affirmative relief for Corley.

“Sleneem’s refusal to accommodate Corley and the decision to instead fire her were completely unjustified and unlawful,” said EEOC Indianapolis Regional Attorney Kenneth Bird, whose jurisdiction includes Michigan. “It would have been simple to allow Ms. Corley to wear a skirt, and would not have negatively impacted the business in any way. Employers have an obligation to provide these types of reasonable religious accommodations, and when they fail to, the EEOC will step in.”

EEOC: Hershey Refused Accommodation to Disabled Employee on Return From Leave

One overriding message emerges from the recent onslaught of Americans With Disabilities Act lawsuit: You, as the employer, must engage your disabled workers in a dialogue when they request an accommodation.  You don’t necessarily have to give the requested accommodation, but neither can you dismiss it out-of-hand or stiff the employee.

Now global candy manufacturer The Hershey Company must face the Equal Employment Opportunity Commission in federal court over allegations that it refused to accommodate a disabled employee and fired her instead.

According to EEOC’s suit filed on July 19, Hershey was aware of Kristina Williams’s herniated discs and her lifting restrictions at the time of her hire in 2011 as a part-time retail sales merchandiser. Williams was diagnosed with spinal stenosis and took a short medical leave of absence in early 2015. The EEOC’s investigation found that when Williams requested flexibility to divide her daily break into smaller portions to help her stay within her lifting restrictions, Hershey refused to allow her to return to work, effectively suspending her for three months. Finally, in a letter dated Aug. 19, 2015, Hershey denied her request for accommodation and instead fired her.

Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to qualified employees who have a disability. After first attempting to reach a pre-litigation settlement through its conciliation process, the EEOC filed its lawsuit (EEOC v. The Hershey Company, Civil Number 2:17-CV-01092) in U.S. District Court for the Western District of Washington. The agency seeks monetary damages on behalf of Williams, training on anti-discrimination laws, posting of notices at the worksite, and other injunctive relief.

“Employers cannot ignore a request for a reasonable accommodation from an employee with a disability,” said Nancy Sienko, director of the EEOC’s Seattle Field Office. “The law requires an employer to explore possible solutions to ensure that a worker can perform the essential functions of her job.”

EEOC Supervisory Trial Attorney John Stanley said, “Employers cannot unilaterally decide to respond to an injury by refusing to allow an employer to return to work. According to the ADA, the exploration of possible accommodations must include the input of the employee.”

According to company information, The Hershey Company is based in Hershey, Pa., employs over 20,000 people in 37 different states and had over $7.38 million in net sales in 2015, the year in which Williams last worked in the company’s Seattle District.

“Rigid” Maximum Leave Policy Lands Delaware Employer in Court Opposite EEOC in ADA Suit

Inflexibility in HR policies is rarely a good idea, and is especially a bad idea when it comes to employees who need accommodations for their disabilities.

A Delaware nonprofit company will have to defend its maximum leave policy in U.S. court opposite the Equal Employment Opportunity Commission.

Connections CSP, Inc., one of Delaware’s largest non-profit organizations that provides health care, housing and employment opportunities, unlawfully denied reasonable accommodations to a class of employees and fired them pursuant to an inflexible maximum-leave policy, the EEOC) charged in a lawsuit it announced on July 17.

According to the EEOC’s suit, Connections unlawfully enforced a fixed leave policy that did not provide reasonable accommodations for qualified individuals with disabilities when, as a matter of course, it refused to provide leave beyond the 12 weeks allowed under the Family Medical Leave Act (FMLA) and fired those employees when their leave expired. The EEOC charged also that Connections denied other forms of reasonable accommodations that would have allowed qualified individuals with disabilities to remained employed, such as reassignment to vacant positions. Instead, the EEOC said, Connections also placed those employees on FMLA leave and terminated them as well when their leave expired.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability. The ADA also requires an employer to provide reasonable accommodations, such as modifying leave policies to grant additional unpaid leave or transferring an employee to a vacant position for which the employee is qualified, unless the employer can prove it would be an undue hardship. The EEOC filed suit (EEOC v. Connections CSP, Inc., Case No. 1:17-cv-00862) in U.S. District Court for the District of Delaware, after first attempting to reach a pre-litigation settlement through its conciliation process.

“Rigid maximum-leave policies, even if they comply with other laws, violate the ADA when the policy mandates the termination of employees,” said Spencer H. Lewis, Jr., director of EEOC’s Philadelphia District Office. “This case should remind all employers of the need to engage in the legally required interactive process and provide reasonable accommodations, such as modifications of leave policies or transfers to vacant positions, on a case-by-case basis unless the employer can show it is a significant cost or disruption of business.”

EEOC Regional Attorney Debra M. Lawrence added, “While employers may have leave policies that establish the maximum amount of leave an employer will provide or permit, the ADA requires that the employer modify those policies and grant additional leave as a reasonable accommodation to employees who need it because of a disability, unless the employer can prove that doing so will cause an undue hardship,” Connections CSP repeatedly refused to modify its inflexible, maximum leave policy, or provide other reasonable accommodations as required by law, and that’s why we filed this suit.”

EEOC: Employee Was Fired for Seizure Disorder

Had this employer just talked to an employee about a possible accommodation for his seizure disorder, maybe this lawsuit could have been avoided.

Pittsburgh-based global paint supply company PPG Industries, Inc. violated federal law by terminating an employee with a disability after he suffered seizures which led to medical restrictions, the Equal Employment Opportunity Commission charged in a lawsuit it filed on July 14.

According to the EEOC’s lawsuit, the employee worked in the Ferndale, Mich., plant of the Revocoat company. The employee was placed on a six-month medical restriction prohibiting him from driving and operating heavy machinery because of his having suffered seizures. After that, the company put him on a medical leave of absence. While out on his medical leave, PPG Industries purchased Revocoat. The employee communicated with PPG’s human resources director and provided him with updated medical information. However, the HR director refused to provide any accommodations, and fired the employee. Thereafter, the Ferndale plant was closed.

Such alleged conduct violates the Americans with Disabilities Act (ADA). After attempting to reach a pre-litigation resolution through its conciliation process, the EEOC filed suit in U.S. District Court for the Eastern District Court of Michigan (EEOC v. PPG Industries, Inc., Case No. 2:17-cv-12304). The EEOC is seeking monetary relief for the employee and an injunction prohibiting PPG from engaging in this type of conduct in the future.

“Federal law prohibits employers from denying workers with disabilities a reasonable accommodation,” explained EEOC Trial Attorney Nedra Campbell. “In this case, PPG could have considered a temporary change in duties or a six-month medical leave to coincide with this man’s medical restrictions. When employers flatly refuse to even explore such measures, the EEOC will step in to make things right.”

According to its website (www.ppg.com), PPG Industries, Inc. (NYSE:PPG) is a global paint supplier. It is a Fortune 200 company that has locations throughout the United States and abroad.

New Rule on Beryllium Exposure Proposed

The U.S. Department of Labor’s Occupational Safety and Health Administration on June 23 announced a proposed rule that would modify the agency’s recent beryllium standards for the construction and shipyard sectors. Representatives of the shipyards and construction industries, as well as members of Congress, raised concerns that they had not had a meaningful opportunity to comment on the application of the rule to their industries when the rule was developed in 2015-16. This proposal provides a new opportunity to comment on the rule for those industries and the public. The new proposal would make changes to the rule only for the shipyard and construction sectors. The general industry standard is unaffected by the proposal.

The proposal for shipyards and construction would maintain the requirements for exposure limits (permissible exposure limit of 0.2 μg/m3 and short-term exposure limit of 2.0 μg/m3), which will continue to protect workers from a serious beryllium-related lung disease known as chronic beryllium disease. The proposal instead revises the application of ancillary provisions such as housekeeping and personal protective equipment in the January 2017 final standards for the construction and shipyard industries. OSHA has evidence that exposure in these industries is limited to a few operations and has information suggesting that requiring the ancillary provisions broadly may not improve worker protection and be redundant with overlapping protections in other standards. Accordingly, OSHA is seeking comment on, among other things, whether existing standards covering abrasive blasting in construction, abrasive blasting in shipyards, and welding in shipyards provide adequate protection for workers engaged in these operations.

The Notice of Proposed Rulemaking for Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors will be published in the Federal Register on June 27, 2017. OSHA encourages the public to participate in this rulemaking by submitting comments during the 60-day comment period. Click here for information on submitting comments on the proposed rule and requesting public hearings.

On Jan. 9, 2017, OSHA issued a final rule that established new protections for workers who are exposed to beryllium in general industry, construction, and shipyards. Beryllium is a lightweight metal used primarily in specialty alloys and beryllium oxide ceramics. It is also present as a trace material in metal slags.

OSHA also announced it will not enforce the Jan. 9, 2017, construction and shipyard standards without further notice while determining whether to amend the Jan. 9, 2017, rule.

Fla. Staffing Co. Caught in Document Scheme

A personnel agency in Florida crossed the legal line in the documents that it required job applicants to hand over to prove their U.S. citizenship. As a consequence, the U.S. Department of Justice investigated.

Sellari’s Enterprises, Inc. (Sellari’s), a company that provides staffing services in Orlando, Florida., reached an agreement with the Justice Department on June 30 that resolves the department’s investigation into whether Sellari’s violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when verifying their work authorization.

Based on its investigation, the department concluded that Sellari’s requested that non-U.S. citizens present specific documents to prove their work authorization, such as a Permanent Resident Cards or Employment Authorization Documents, while not requesting specific documents from U.S. citizens. All work-authorized individuals, whether citizens or non-citizens, have the right to choose which valid documentation to present to prove they are authorized to work. The anti-discrimination provision of the INA prohibits employers from subjecting employees to different or unnecessary documentary demands based on employees’ citizenship, immigration status or national origin.

Under the settlement, Sellari’s will pay a civil penalty of $120,000 to the United States, post notices informing workers about their rights under the INA’s antidiscrimination provision, train its staff, and be subject to departmental monitoring and reporting requirements for three years.

“The law protects individuals who are work-authorized from discriminatory obstacles during the employment eligibility verification process,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. “Employers must ensure that their employment eligibility verification processes are not applied in an unlawful manner.”

 

The division’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, is responsible for enforcing the anti-discrimination provision of the INA. Among other things, the statute prohibits citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; and retaliation and intimidation.

 

For more information about protections against employment discrimination under immigration laws, call IER’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); sign up for a free webinar; email IER@usdoj.gov; or visit IER’s English and Spanish websites.

 

Applicants or employees who believe they were subjected to different documentary requirements based on their citizenship/immigration status or national origin, or discrimination based on their citizenship/immigration status, or national origin in hiring, firing, or recruitment or referral for a fee, should contact IER’s worker hotline for assistance

Ohio Factory Dinged for Machine Hazards

Exposing workers to machine hazards and silica caught up with an Ohio company.

Amsted Rail Company Inc., a manufacturer of cast steel freight components, faces $610,034 in proposed penalties from the U.S. Department of Labor’s Occupational Safety and Health Administration after agency investigators found workers at its Groveport plant exposed to machine hazards and silica.

OSHA found one worker was hospitalized after suffering severe injuries when he was caught in a machine, and at least four workers were exposed to excessive levels of silica, which can cause serious health issues.

“Companies must ensure their workers are trained in proper machine safety procedures and provided the necessary personal protective equipment to prevent injuries and illness on the job,” said Dorothy Dougherty, deputy assistant secretary of labor for Occupational Safety and Health. “Continuous monitoring of facilities and procedures are important components of an effective safety and health program.”

On Jan. 3, 2017, a 60-year-old maintenance worker’s leg was crushed after he was caught in a core baker machine while conducting maintenance. OSHA’s investigation found multiple instances of machine safety violations including failing to lock out machinery to prevent movement during servicing.

A second inspection was opened on Feb. 22, 2017, after OSHA inspectors found workers exposed to silica at amounts over the permissible exposure limit. Investigators documented four incidents of silica overexposure in the facility.

In total, the agency found six repeat, 19 serious and five other-than-serious safety and health violations during the two inspections.

OSHA found Amsted Rail failed to implement engineering controls to lower exposure to silica, affix locking devices to machine operating parts during maintenance, adequately guardmachinery, implement a respiratory protection program, evaluate permit-required confined spaces, guard floor openings and shafts to prevent falls and provide adequate personal protective equipment.

Amsted Rail has been placed in OSHA’s Severe Violator Enforcement Program.

The company has 15 business days from receipt of its safety and health citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

To ask questions, obtain compliance assistance, file a complaint, or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s Columbus Area Office at 614-469-5582.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

This blog post was featured in the July 21 weekly wrap up by the Ohio Employer’s Law Blog.