Category Archives: Employee Rights

Employers Face Obesity Discrimination Issues

Discrimination, Employee Rights, Hiring, Medical, , , ,

In June, the AMA recognized obesity as a disease, instead of just an issue of poor judgment. As an employer, you now have to think about obesity in terms of the Americans with Disabilities Act (“ADA”). To be protected under the ADA, an employer must have a physical or mental impairment that affects a major life activity, such as walking or bending, or affects a major bodily function, such as the cardiovascular system. In addition, the ADA protects people who are “regarded as” having a disability, even if they don’t.

With the AMA’s decision as ammunition, you as an employer are now in the crosshairs of many more disability claims because the Centers for Disease Control says 35.9% of American adults over 20 are obese. We don’t know all the ramifications yet, but it is reasonable to assume that the AMA’s label will eventually change your legal obligations.

As an employer, you are going to need address the obesity of your employees in three ways:

  1. You must not discriminate against obese applicants or employees by treating them adversely in hiring, promotions, discharge, compensation, job training, or other terms and conditions of employment. Appearance discrimination hasn’t found much support in the courts before the AMA’s decision, but this could give that kind of claim new life. This means that the overweight applicant who you fear will have absenteeism problems because of health issues cannot be excluded on that basis from hiring consideration. Also, that obese employee who you have consistently passed over for a promotion because you think he is lazy, or the fat assistant who wants to go into sales but you don’t believe she presents a professional image, may have a discrimination claim against you either because he/she is disabled by obesity or is regarded as such. Finally, when you are firing an employee, you’ll need to have well-documented reasons if obesity could be a claim.
  2. You will have to accommodate an obese employee’s reasonable requests for bigger, more comfortable furniture, more doctor’s visits or additional time to perform certain physical functions at work. As with any disability, you will have to handle these requests with discretion and sensitivity. I imagine that public theaters, airplanes and stadiums will also have to address this issue of whether they will have to provide larger seats.
  3. You must prevent harassment based on a person’s disability. That means that fat jokes will have to be tamped down just as you would racial or religious slurs to prevent a hostile work environment.

At a time when some parts of the federal government (HHS, DOL and IRS) are promoting wellness programs under Obamacare and encouraging employers to adopt programs that reward employees who stop smoking, lower their cholesterol or their BMI, the federal discrimination enforcement agency, the EEOC, is going to be scrutinizing wellness programs that may stigmatize obese employees. As an employer, you are going to need to walk a fine line with your wellness incentives. Heck, just having a motivation poster glorifying skinny people climbing to the top of a mountain may imply a negative stereotype of disabled obese employees.

There are no easy answers to this new issue. The AMA’s decision, by itself, doesn’t carry any legal weight. But it could influence the courts and accelerate the EEOC’s efforts to make appearance a protected class. My advice is to avoid becoming the test case on this issue and just use some care and common sense when dealing with obese employees.

 

Gay Marriage Affects Texas Employers

Benefits, Discrimination, Employee Rights, Personnel Policies

 

Regardless of your political beliefs about gay marriage, you are going to need to start dealing with the legal implications in your business. The U.S. Supreme Court’s two decisions regarding gay marriage, issued June 26, will leave you as an employer with more questions than answers right now. Even though Texas doesn’t recognize same-sex marriages, there are going to be issues raised by your employees about the application of benefits and employment laws to same sex couples even within the 37 states that don’t yet allow gay marriages. As Justice Antonin Scalia wrote in his dissent:

Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” Ala. Code §30–1–19(e) (2011). When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s?

Justice Scalia could have continued with questions such as: Must an employer offer COBRA continuation coverage of health insurance to a same-sex spouse, since COBRA is federally regulated, not a state issue? Does an employer in Texas have to provide Family and Medical Leave for an employee to provide his same-sex spouse (who legally married elsewhere) with care for a serious medical condition? Again, FMLA is a federal law, not a state one. There is some speculation among lawyers that President Obama will direct federal agencies such as the Department of Labor, when interpreting federal statutes such as FMLA or COBRA, to treat the “State of celebration”, as Scalia called it, as the state that matters, not the state of residence. This could mean that you as a Texas employer could be liable under FMLA, for example, even though gay marriage isn’t allowed in Texas.

In addition, many employee handbooks define “immediate family” for purposes of bereavement leave, personal leave, nepotism and health insurance benefits and include just the word “spouse” without a definition. Are you going to make a distinction in your business that the “spouse” must be an opposite-sex spouse? And if you do, will you at some point face a federal lawsuit for discrimination?

Is your head spinning yet from these questions?

The courts and the administrative branch will eventually give us the answers to these questions, but as an employer, you have to deal with many of them now as best you can. My suggestion is that if any question involving same-sex marriage arises with your employees, you call an employment lawyer immediately to find out the very latest regulations on this issues.

Employers Required to Post New FMLA Information

Employee Rights, Forms and Policies, , ,

If you employ 50 or more employees (counted by names on a payroll, whether full-time, part-time, owner, etc.), your business is subject to the requirements of the Family and Medical Leave Act, which generally gives employees up to 12 weeks (26 weeks for military family leave) of unpaid leave for pregnancy, the birth or adoption of a child, a serious health condition of the employee or a family member or for leave associated with the call to active duty or the injury of a member of the military. If your business is subject to the FMLA, you must place a poster on your workplace bulletin boards about your employees’ rights under FMLA. A few weeks ago, the Department of Labor changed a little of the language of that poster with regards to military families and airline flight crews. Even if these changes don’t specifically apply to your workplace, if you employ 50 or more employees, you must post the new FMLA poster in your workplace by March 8, 2013. You can find the new poster and print out a free copy of it at: https://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.

Is There a Union in Your Future?

Employee Rights, Management

Across the country, approximately 8% of the workforce is unionized. Speculation is that if the Employee Free Choice Act (“EFCA”), the union-backed legislation making its way through the Democratic-controlled Congress, passes, that number could double.

This is causing concern for many employers, who fear that a unionized workforce makes the company less flexible, innovative and responsive to a rapidly-changing global economy, in which customers only care if your product is feature-packed and low-priced. Union contracts and the rigid rules they impose can possibly turn a company into a slow-moving and out-of-date giant like GM or Chrysler.

How would the EFCA increase your chances that your workers would be unionized? The bill would allow workers to sign cards with a check-off box saying that they want to be represented by a union. If 51% check off the “yes” box, then you will have a union in your workplace. This method is currently allowed, but employers don’t have to recognize the check-cards and can demand a secret ballot election, which provides the employer time to counter the unionization attempt. Requiring an employer to recognize the check-card election alone as controlling does increase the chance that a union will start representing your workers in negotiating all terms and conditions of employment.

The EFCA would also require the company and the union to submit to binding arbitration if a union contract could not be negotiated in 90 days. This provision could increase the chance that a National Labor Relations Board arbitrator will be determining your wages, vacation policies, attendance policies, etc., instead of you as the owner or manager of the business.

The chance of passage of the EFCA in the Senate decreased in late March when moderate Republican Sen. Arlan Spector announced that he would not support the legislation with his swing vote in these difficult economic times. However, there will probably be some sort of compromise bill that passes, so you can’t totally ignore the possibility that a union may soon be coming to a workforce near you.

If you want to decrease your chances of ever facing a union election in your business, here are some proactive steps that you can and should take right now:

Continue reading Is There a Union in Your Future? →

Don’t Show a Texas Employee His File

Documentation, Employee Rights, Forms and Policies

Let me be clear: Private employers in Texas do not have to allow employees to see their personnel files. That’s right. I don’t care what other states do, or what they show on TV. The law in Texas is that the file belongs to the employer and the employee cannot demand to see it.

That being said, what does your personnel policy manual say? Many employers whom I help have policies that they copied from a generic software package or borrowed from a friend’s company with offices in another state. Those employee handbooks often say something like, “An employee may request to see his personnel file with 3 days written notice to the human resources department.”

If you have given your employees that privilege, it will appear discriminatory to deny them the opportunity to review their files if they make that request. So check your policy manual first. If you have a policy that promises that employees can see their files, you need to amend your policy to say, “Personnel records of the company belong to and are the property of the company. They are not available to an employee to review.” Then, whenever an employee asks to see her file, you can point to your policy and say, “no” without hesitation.

Why do I recommend that employers in Texas keep their files private? Because the most common mistake I see in my employment law practice is that employers do not document enough. They are scared to write anything down if they know that an employee can see it and question it at any time. The threat of employee litigation looms heavy over most of today’s managers.

I continually try to encourage supervisors to write down everything. I won a trial one time based solely on the informal, imperfect daily diary notes that a manager kept about any problems that he had during the day with his team. The employee who sued the company was mentioned so many times in the informal notes in the 3 months before his termination that it was clear that he was a problem employee and not the victim of discrimination or retaliation.

If you keep your employee files private and document consistently, you can avoid a lot of potential liability as an employer.

Employer Faces Child Labor Criminal Charges

Employee Rights, Hiring

Note: This Employer’s Advocate column was originally published in the Amarillo Globe-News on Sunday, October 12, 2008.

This newspaper reported last month that the owner and the managers of the nation’s largest kosher meat-packing plant (Agriprocessors in Postville, Iowa) were criminally charged with more than 9000 individual counts apiece for employing children younger than 16 to handle dangerous equipment such as power saws and meat grinders. The children were also exposed to hazardous chemicals, according to the charges.

To assure that your business and you personally never get into that kind of criminal trouble, you have to educate yourself on the child labor laws.

A common trap that employers fall into with workers under 18 is to allow them to frequently drive on the job. No employee under 17 may drive a motor vehicle on public roads as part of his job. That means that you can’t use a 16-year-old to even run to the office supply store.

If your employee is 17, she can drive on the job only during daylight hours, only if she has completed a state approved driver’s education course and has no moving violations on her record at the time of hire, always wears a seatbelt and only if she spends no more than 20 percent of her time during any one workweek driving on company business.

There are other traps in the child labor laws, such as restrictions on allowing teens to work in fast-food restaurants near the meat slicers. Also, some states have even stricter laws than the federal law outlined here.

So here are the general child labor laws that you must follow: Continue reading Employer Faces Child Labor Criminal Charges →

How to be a Christian Employee

Employee Rights,

Note: An edited version of this article ran in the July 27 edition of the Amarillo Sunday Globe-News. This is the whole column as originally written:

In this column last month, I tried to combine my legal expertise and my faith as I tackled the difficult topic of how to be a Christian employer. Click here for the column on being a Christian employer.

The most logical follow-up to last month’s column, which was written for owners and managers, seems to be to write about how to be an employee if you are a Christian. I want to explore practically and Biblically how a Christian employee should behave and if that is any different from the rest of the working world.

Most of us are in an employee role either to a boss or to our clients. The Bible has a lot to say about how we should play that servant role. Continue reading How to be a Christian Employee →

Required Employee Posters

Discrimination, Employee Rights, Forms and Policies,

For this week’s Friday Form, I thought I would provide you with the links for many of the employee rights notices that you as an employer should have posted in your workplace.

Most of the necessary posters are available free from the agencies that require them, so don’t bother paying money to a commercial vendor for them. The posters change too often to make that a good deal.

Here is where you can find explanations and instructions for downloading almost all the posters required by federal law.

Here is where you can find almost all the posters required of Texas employers in addition to the federal posters.

Failure to post the required notices for your employees to see can cost you as much as $100 per poster per worksite if anyone spots or reports your violation. It is so easy to post these things that there is really no reason not to do so.

Required Employee Posters

Employee Rights

            As I told you last month in this column, the federal minimum wage is increasing as of July 24, 2007. As an employer you will be required to pay your employees at least $5.85 per hour. One year from now, on July 24, 2008, the minimum wage will increase to $6.55 per hour and then on July 24, 2009 and thereafter, you will have to pay your employees at least $7.25 per hour. 

            One of the other requirements that goes along with this increase is the obligation of employers to post a notice of the new minimum wage on your employee bulletin board. As of July 3, that notice is available for free at https://www.dol.gov/compliance/topics/posters.htm.

            No matter how small your workforce, you must post this notice on your employee bulletin board. If you are thinking, “What bulletin board?” it is clearly time to review your obligation as an employer to keep your employees informed of their employment rights.

Continue reading Required Employee Posters →