Tag Archives: Federal Employment Law

Accommodating Mental Disabilities

Discrimination

One of the inevitable problems that the Americans with Disabilities Act Amendments Act (ADAAA), which went into effect January 1, 2009, will cause employers will be the difficulty figuring out how to treat every disabled employee on a case by case basis while all other discrimination laws demand that you treat every one equally. That problem is exacerbated when the employer is trying its best to reasonably accommodate an employee or applicant with a mental impairment.

Let’s look at hypothetical situation: Your newest sales person, Anne, is a 25-year-old, high energy extrovert. She is great when sent out to call on customers. But Anne’s paperwork is a mess and her lack of time management drives you crazy. During organizational meetings, she continuously bounces her left leg and clicks her pen. Everyone on the sales team can pick up on her impatience with any planning process.

Despite Anne’s sales ability, you are about to decide that she is not the right fit for your organization, when Anne drops into a casual conversation the fact that she was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when she was in middle school and has been off and on Ritalin ever since. This is not an uncommon situation, since 5.2 percent of the working adult population in the United States has ADHD, according to the World Health Organization.

Firing Anne outright for lack of organizational ability would be a mistake, now that you are aware of the disability. Continue reading Accommodating Mental Disabilities →

Cupid at Work? Bah humbug!

Discrimination, Forms and Policies, Management

Reuters published a story today about a CareerBuilders.com survey on workplace romances. Just in time for Valentine’s Day, 40% of American workers admit that they have dated a coworker. Another 10% say there is a coworker they would like to date. Interestingly only 5% of women want to date a coworker while 14% of men do. Can someone say “hostile environment”?

It gets worse: of those who dated a co-worker in the last year, a third of those relationships involved a coworker who was held a more senior position, including 42% that dated their boss. Can you say “quid pro quo sexual harassment”?

I know I should be all starry-eyed about all the wonderful sparks of romance lighting up American workplaces. But my 22 years of law practice always make me fast-forward to the part where the flames of love die and and out of the embers come the EEOC claims.

Workplace romances are fraught with sexual harassment and retaliation risks. If coworkers date and then break up, the gossip, name-calling, sexual jokes and scorn can easily be twisted into a claim that the workplace has become a hostile environment based on gender.

If a boss dates a subordinate, it gets even messier. The claim can become quid pro quo (loosely translated “this for that”), meaning that the subordinate may say that she was passed over for a raise or promotion or even fired because she wouldn’t give the boss what he used to get and still wants. Quid pro quo cases involving a tangible job detriment, such as a demotion, are the worst kinds of sexual harassment cases for an employer to try to defend.

Many employers are hesitant to get involved in their workers “private” lives. If it is developing in your workplace, it is hardly private. You may need a written policy to establish clear boundaries between business and personal interactions. It can include:

  • Instruction to keep interactions at work professional (no PDA, no long personal exchanges);
  • Requirement of prompt disclosure of a developing relationship, particularly if it involves a supervisor;
  • Removal of management authority from anyone over an employee involved in a personal relationship;
  • Requirement that the dating couple work with management to find an acceptable solution to any problems that arise, such as complaints of favoritism;
  • Requirement to accept transfers, changes in duties, or even voluntary termination of the more senior party if other measures don’t prevent or resolve problems.
  • Requirement that the end of any such relationship be reported to human resources so that future actions can be scrutinized for retaliation or harassment.

Sort of takes all the fun out of the romance, doesn’t it? I feel like Scrooge at Christmas, but I’ve seen too many of these relationships go bad and then the company has to pay the price. Better to nip it in the bud, red rosebud, that is, since ’tis the season for overpriced, underdeveloped blooms!

I-9 Cautionary Tale

Documentation, Hiring

If you like to rant and rave about the lack of government enforcement actions to stem the tide of illegal immigration, remember that you as an employer are primarily responsible for making illegal immigration unattractive by requiring every employee to demonstrate his eligibility to work in the United States. This is done by requiring every new hire to fill out an I-9 employment eligibility form within the first three days of employment. No documentation: no job.

What happens if your company is not diligent about filling out the I-9 forms completely and correctly or if your company just turns a blind eye towards an employee’s questionable legality? Ask Republic Services, Inc. in Houston. The waste management firm recently cooperated with Immigration and Customs Enforcement (ICE) and paid $1 million to the national treasury to avoid criminal prosecution for sloppy I-9 practices that led to hiring undocumented workers to make up 25% of its workforce. The federal government was not impressed with any excuses that Republic made.

What could you do differently to avoid such an outcome in your company? These are the changes that ICE required Republic to make and that you could be making right now:

  • Terminate any employee whom you know is undocumented.
  • Give others whose documentation is questionable a reasonable period to provide unexpired or otherwise genuine documents. If good documents aren’t provided, terminate that employee’s job.
  • Hire and train well one or two centralized human resources people to complete all I-9s and to verify that the documentation presented appears genuine.
  • Provide training for all supervisors or other employees with input into hiring to make sure they know the rules and don’t try to skirt them.
  • Implement payroll software that includes I-9 compliance measures, such as advance notification when an employee’s documentation is about to expire.
  • Keep copies of all eligibility documents presented by your employees, all letters you write about expired documents, and all of your efforts to keep employees in compliance.

Training Slashed Even As Employees File Lawsuits

Discrimination, Management, Training,

One of the ironies of recession is that businesses tend to cut back their training of their employees at the same time that layoffs are spawning the filing of higher numbers of employee lawsuits. This is happening again during the present deepening economic crisis. Unfortunately, this is one of those situations of businesses “cutting off their noses to spite their faces.” (Do people still say that or am I showing my age?).

During 2008, studies show that average training expenditures in U.S. businesses decreased 11%. The studies don’t pinpoint which types of training, i.e. safety, skills or sexual harassment prevention, are being cut, but I can guess. Few companies understand the incredible effectiveness of providing employment law training to defeating expensive and time-consuming litigation. Therefore, if they ever offered training to their supervisors on avoiding discrimination or to their staffs on recognizing and preventing harassment or violence, they probably will slash that expense this year.

At the same time that the finance department is telling their bosses that the training budget has to go, employees are being terminated in record numbers. The national unemployment rate for January, which will be released tomorrow, will probably be around 7.5%, a 17-year high.*

And what do employees do after they are fired? They look for someone to blame, which in many cases will be the company that fired them. So they file unemployment claims, discrimination complaints, and lawsuits. During the fiscal year 2008, the Equal Employment Opportunity Commission already experienced a 15.2% annual increase in charges of discrimination and retaliation filed. Just wait until FY 2009.

I can already tell from my own law practice that even in the Texas Panhandle, which has been unusually sheltered from the current economic storm, employee complaints and lawsuits are increasing. Many of my clients are starting to face the investigative powers of the EEOC or the Texas Workforce Commission’s Civil Rights Division. Many of those charges will turn into lawsuits alleging discrimination and retaliation.

If you are regular reader of this blog, you know I always advocate written policies and employee training as your first line of defense against an employee lawsuit. If you start cutting your budget for those things, you may see short-term financial relief, but in the long run you are leaving your company very vulnerable to very costly employment lawsuits.

*Note from February 6, 2009: As it turned out today, the national unemployment figure was even higher: 7.6% for January 2009. That means that almost 600,000 jobs were lost in January. That is the worst showing for number of job losses since 1974. In all, 3.6 million Americans have lost their jobs since this recession started 13 months ago.

Ledbetter Fair Pay Act Is Now Law

Compensation, Discrimination

As predicted in this blog and by most employment law pundits, President Obama is expected today to sign bill favoring employees as his first piece of major legislation. The Lilly Ledbetter Fair Pay Act overturns a U.S. Supreme Court decision from 2007, which restricted the statute of limitations on Equal Pay Act claims.

Lilly Ledbetter worked for Goodyear Tire & Rubber Co for 19 years before she found out that she was the lowest paid supervisor there, even though she had more experience than some of her male counterparts. She sued for pay discrimination based on gender, and the jury agreed with her. But the case was appealed all the way to the Supreme Court, which decided that the 180-day statute of limitations for complaining about discrimination had run out when 19 years before, when the pay inequity first occurred, regardless of when she found out.

The new law, which will go into effect tomorrow, clarifies that each new paycheck is a discriminatory act that starts the 180-day clock running again if an employee is being paid less because of her gender, race, age, disability, or national origin. An employee can now claim discrimination on the basis of pay when he discovers the inequity and seek two years of back pay for the amount he should have been paid.

What can you do as an employer to prevent an Equal Pay Act suit? Senator Barbara Mikulski, who sponsored the bill, had a point: “If you don’t want to be sued, don’t discriminate,” she said.

The Equal Pay Act has been around since 1963, enacted even before Title VII of the Civil Rights Act of 1964 outlawed other types of discrimination. It has helped women go from earning $.62 for every dollar a man earned for the same job to earning $.80 for his dollar. But there is still obviously some subtle discrimination or women and men would both earn the same amount for performing the same job. Since the law has been around since most of us who are business owners and managers were in elementary school or even diapers, maybe it is time that we learned to comply with it.

How do you do that? Look at what every employee performing the same job is earning. For example, if you have five engineers working for you, pull out your payroll and figure out if you really could justify their salary discrepancies and the demographics. If Engineer Bill has 30 years experience and Engineer Tiffany has 10, that is a pretty convincing justification for Tiffany making less than Bill. But if they both have about 10 years of experience and he is still paid more, you may have some explaining to do. He may actually perform much better than Tiffany, but you better have lots of paper to back that theory up.

I know this evaluation will take some time ( probably a day) and will be a PITA (as my teenage son says). But as I always say, you can either spend a day now to prevent a suit, or spend weeks or months in investigations, discovery, depositions, mediations and trial with a disgruntled employee, her lawyer and me later.

Firing without Fear

Termination, , , , ,

Many Texas business owners and managers that I know are extremely authoritative and competent until it comes to firing an employee. Then the most confident bosses become fearful. Getting sued by an employee scares them and rightfully so. But times are tough economically and you may have to terminate some employees just to keep your business afloat. So how do you fire without fear of the legal fallout?

A “good” termination doesn’t happen overnight. I have often advised employers that even though quick, decisive action is needed, the employer may need as long as six months to fire someone if the employer hasn’t been diligent about policy-making, documentation and training before then. So before you can fire without fear, here are some preliminary steps:

  1. Make sure you have a great employee policy manual that is up to date and makes clear your expectations of all employees. Policies that clearly prohibit illegal harassment, discrimination, drugs, Internet pornography and violence, as well as strict procedures for reporting violations of these policies, can dramatically reduce your exposure in lawsuits.
  2. Training of your supervisors is essential to firing without fear. Day to day careless comments made by a first line supervisor often comprise the most damaging evidence in an employee lawsuit. Make it clear through training of every person with any supervisory authority that throwing an “Over the Hill” birthday party can indicate age discrimination, compliments about a woman’s clothes can be twisted into a sexual harassment complaint and grumbling about an employee’s reluctance to work on a Sunday can be perceived as religious discrimination. The behavior required of supervisors nowadays often defies common sense and human nature, so training is the only sure-fire way to know that your supervisors will not say or do something that the company will come to regret after a termination.
  3. Regular performance evaluations that honestly identify an employee’s short-comings are essential to a “good” termination for poor performance. No one should be surprised that he is being fired because at least a couple of prior poor performance reviews should have preceded the termination.
  4. Don’t fire anyone unless for disciplinary violations such as absenteeism unless you have warned him in writing at least a couple of times that his behavior is unacceptable. Those written warnings should include a plan for improvement and a statement that if his actions do not improve, he will be “subject to disciplinary action, up to and including termination.”
  5. Call your employment lawyer before you fire the employee. Your attorney will probably want discuss the employee’s entire employment to identify all the possible red flags that this particular employee’s record could wave. (Click here for a checklist for termination red flags when a Texas employee is involved.) Be prepared to send your lawyer your policy manual, the supervisory training records and the employee’s file for review. The lawyer may want also to talk to the employee’s direct supervisors to gauge any exposure there before advising you as to the wisdom of a job termination.
  6. Write a termination memo to give to the employee. It should briefly set out the policy violations that resulted in the employee’s job termination. This memo may be repeatedly scrutinized by the employee, her lawyers, the Texas Workforce Commission, the Equal Employment Opportunity Commission and even a jury, so it must be worded carefully. However, don’t skip this step out of fear. The memo will prevent the “he said, she said” exaggerations if litigation does ensue and keep everybody focused on the nondiscriminatory reasons that the firing occurred.
  7. Terminate the employee when you are calm and well-rested and you have another trusted manager available to be a witness. Make the meeting brief. Just hand the employee the termination memo and ask if she has any questions. Stand firm on your decision and don’t argue with the employee. Assure the employee that she can return to gather her belongings at a mutually agreeable time (don’t just give her ten minutes to pack up her belongings and then march her out under armed guard). Let her leave with some dignity and wish her well.

Bush’s Employment Law Legacy

Compensation, Discrimination, Documentation

Since this is the last day of President George W. Bush’s presidency, I thought it appropriate to look back and see what employment laws have been passed while he has been in office. While generally considered lax on enforcement of employment laws (except with regard to employing illegal immigrants), there have been several sweeping changes that affected the employee/employer relationship in the last eight years.

The Americans with Disabilities Act was amended drastically in 2008. I have written extensively about the amendments on this blog, which you can read by clicking here. Surprisingly for an administration that was considered pro-business, these amendments that Bush signed were very favorable to employees and could mean a substantial increase in the number of lawsuits against companies for alleged disability discrimination.

The Family and Medical Leave Act was also amended to expand the act to cover military families, not only when a servicemember is wounded and needs care, but also to allow family members to take 12 weeks off whenever a servicemember is called up. In addition to this law, signed by Pres. Bush in January 2008, his Department of Labor finalized substantial changes to the regulations affecting the FMLA. Most of the changes were applauded by businesses for making the complicated FMLA easier to administer.

Pres. Bush signed legislation requiring Incremental increases to the minimum wage, which increased to $5.85 in the summer of 2007, $6.55 in July 2008, and will be finalized at $7.25 on July 24, 2009. Traditionally, businesses have protested minimum wage increases, saying that the economic impact on small businesses is too great to be passed on and negatively drags down profits. I have seen no study linking the current economic crisis to the minimum wage increases that began in the summer of 2007, but the timing of the increases and the economy going into the toilet is worth considering. Continue reading Bush’s Employment Law Legacy →

Brief Updates

Attendence, Compensation, Discrimination, Hiring,

The Department of Labor has released new notification forms to be used with Family and Medical Leave. If you have more than 50 employees (names on the payroll, whether full or part time), you should have an FMLA policy in your handbook and the FMLA poster on your employee bulletin board. Once an employee has requested any absence from work that might qualify as family or medical leave, then it is up to the employer to notify the employee of the employee’s eligibility for federally mandated family and medical leave, to ask for medical certification of the condition necessitating the leave and to make a final determination of eligibility. Also the employer must provide leave to military families under certain circumstances. The necessary forms to use for all of these determinations are available on the Department of Labor’s website, which you can access by clicking here.

* * *

The wage discrimination laws that I discussed in my January 6 blog post were unsurprisingly passed by the U. S. House of Representatives last week. If they clear the Senate, you can be assured that President Obama will promptly sign them. As I stated in that post, you can get ready for this law by deleting any policy still in your employee manual that prohibits employees from discussing their salaries. You can also review the salaries of any employees performing the same jobs and make sure that you have a rock-solid (meaning something in writing from the time the salary was determined) explanation relating to tenure or extra educational or licensing qualifications to explain why a male employee is making more than a female employee.

* * *

The Texas Legislature started its biennial circus last week in Austin. Once the drama of the Texas Speaker’s race subsided, it was time to look at the proposed legislation that could affect employers. Some of the ones I will be watching include a bill to require all employers to pay an employee her regular wages while she serves on jury duty, lots of bills penalizing employers who don’t carry worker’s compensation insurance, and family leave bills to allow parents time off to attend school activities involving their children. If any of these or other employment-related bills pass during this legislative session, I’ll keep you posted.

* * *

Somehow, the last tidbit on giving time off to parents for school activities reminded me of this joke about an employer’s reply to an employee’s request for time off:

“So you want a day off? Let’s take a look at what you are asking for!

There are 365 days this year.

There are 52 weeks per year in which you already have 2 days off per week, leaving 261 days available for work.

Since you spend 16 hours each day away from work, you have used up 170 days, leaving only 91 days available.

You spend 30 minutes each day on coffee break. That accounts for 23 days each year, leaving only 68 days available.

With a one hour lunch period each day, you have used up another 46 days, leaving only 22 days available for work.

You normally spend 2 days per year on sick leave. This leaves you only 20 days available for work.

We are off for 5 holidays per year, so your available working time is down to 15 days.

We generously give you 14 days vacation per year which leaves only one day available for work and I’ll be damned if you’re going to take that day off!”

Understanding Changes in Disability Discrimination Law

Discrimination, Hiring, Training

2009 is going to be remembered as the year that the Americans with Disabilities Act (“ADA”) became the full employment act for employees’ lawyers. That’s because dramatic changes to the ADA went into effect on January 1, 2009. No longer can an employer assume that the ADA is an concern only if an applicant shows up in a wheelchair or with a seeing eye dog. The ADA now will significantly affect every workplace (except those small businesses with less than 15 employees) and employers need to be educated and ready to respond appropriately.

Briefly, the ADA protects mentally or physically impaired individuals who are qualified to perform a job from discrimination because of their disability. Sounds good, and it is. But for employers, the devil is in the details. The ADA Amendments Act (“ADAAA”) passed last year by the 110th Congress expanded the definition of disability in a way that I believe makes virtually every Baby Boomer a potential plaintiff in a disability discrimination lawsuit. Why? Because most of us born between 1946 and 1964 are starting to feel some of the aches and pains of middle age and that is about all that is required to claim a disability under the ADA. In addition to the 70 million Baby Boomers in the workforce, there are many younger workers who are also physically or mentally disabled.

You are disabled under the ADAAA if you have an impairment that substantially limits one or more major life activities.  “Major life activities” now include walking, seeing, hearing, and breathing, as you would expect, but also sleeping, bending, learning, reading, concentrating, thinking, communicating and working. The term also includes the operation of any major bodily function, such as respiratory and circulatory, as you would expect, but also, reproductive, digestive, and immune system.

If an employee is disabled or even regarded as disabled because of past problems (such as drug addiction that is now under control), you as an employer must provide reasonable accommodation of that employee’s disability if necessary to allow the employee to perform the essential functions of his/her job. Some employment lawyers believe that the “regarded as” component could mean that any employee who ever had a serious medical condition will always be regarded as disabled and protected by the ADA, even if the disease is now in remission.

You can expect to deal with the ADA when an infertile female employee wants to take time off as an accommodation so that she can receive fertility treatments. An employee who needs a 25-inch computer monitor because his poor vision makes it hard for him to read even with his eyeglasses may now need to be accommodated. An employee who is bi-polar may be able to request moving away from an annoying coworker if she says the coworker is a depression trigger. The fact that the employee could take mitigating measures to fix or control the problem, such as taking her medications to prevent depressive episodes, can no longer be considered to determine whether the employee is actually disabled.

What can you as an employer do to keep your company out of legal hot water with the ADA? Continue reading Understanding Changes in Disability Discrimination Law →

Lessons from NASCAR’s Discrimination Suit

Discrimination, Management

Six years ago, I had never watched a NASCAR race and would have laughed if you had suggested I ever would. Aaahhh, what love will do to an otherwise rational person! Enter Rohn Butterfield into my life, and I can now tell you that there are 36 races in a season, the Daytona 500 (the start of the season) will be run in February, Jimmy Johnson has won the last three Chases for the Sprint Cup (boo!) and back-flipping Carl Edwards is “my boy”. Okay, I’m apparently an over-educated redneck.

While watching 43 cars go round and round a two-mile track for three hours can get boring at times (even if they are going 200 miles per hour), one of the things that keeps me interested is the fascinating business side of NASCAR. The NASCAR sanctioning body that puts on and officiates the races is privately owned by the France family, yet there are more corporate sponsorship dollars flowing into NASCAR than any other sport (hence the cars and drivers covered in decals). If you ever go to a race, you will marvel that the track is completely ringed by semis filled with NASCAR and driver merchandise.  NASCAR has 75 million fans who purchase over $3 billion in licensed products annually.

So NASCAR is big business. And like any business, it is subject to employee lawsuits. NASCAR just settled the latest claim for a confidential amount with no admission of any liability. The suit alleged that Mauricia Grant, who worked as a technical inspector certifying cars in the Nationwide Series, was subject to racial discrimination and sexual harassment.

NASCAR claimed in its response to the suit that it had a zero tolerance policy against discrimination and harassment in the workplace, that Grant had received and acknowledged that policy, that NASCAR had provided mandatory training annually on these subjects, a training that Grant had attended, and that NASCAR’s policy required Grant to immediately report any violations of its policies but she had failed to do so. In addition, NASCAR claimed that it conducted its own investigation when Grant’s allegations became known and had fired two officials accused of exposing themselves to Grant.

Grant said she was fired for reporting her complaint, which, if true, would be illegal retaliation. NASCAR, however, said Grant was fired for an altercation with a track security guard who asked to see her credentials. Ultimately, because the case was settled confidentially, we won’t know what really happened. But there are still lessons here that any business owner should learn from NASCAR’s experience. Ask yourself these questions to determine if you are protected should similar allegations be made against your company: Continue reading Lessons from NASCAR’s Discrimination Suit →