Archive for the ‘Current Events’ Category

Court Case Gives Employers Clarity on Disciplining Disabled Workers for Misconduct

Thursday, October 13th, 2011

The US Department of Labor estimates that almost 50 million Americans have a disability. Laws and organizations, including the Americans with Disabilities Act (ADA) and the Equal Employment Opportunity Commission (EEOC), work to prevent discrimination towards individuals who have mental or physical conditions that substantially limit one or more major life activity.

Statistics indicate that people with disabilities make up 20 percent of the American workforce. Employers are required by law to provide reasonable accommodations to those who disclose their disability. When employees engage in misconduct resulting from their disabilities, employers often approach disciplinary action cautiously to avoid potential lawsuits.

On April 13, 2011, the Fourth District Court of Appeals gave employers greater clarification on disciplining disabled workers through a case of first impression. The Appellate Court ruled in favor of the employer that terminated plaintiff Linda Wills, who sued for disability discrimination, in the case of Wills V. Superior Court of Orange County.

California’s Superior Court of Orange County fired Wills from her position as a court clerk in October 2007 because of threats she made to her coworkers. Wills was diagnosed with bipolar disorder in 1997 and started her job at the Superior Court in 1999. Although she took several medical leaves to treat her disorder, she did not reveal her disability to her employer.

In July 2007, Wills received a work assignment at the Anaheim Police Department. She became angry when she had to wait for workers to let her into the department’s lockup facility. The police department’s employees informed the Orange County Court that Wills swore at them and told an officer she would add him to her Kill Bill list, referring to the popular movie about a female assassin. The employees of the police department described Wills’ behavior as threatening and asked the Superior Court to no longer assign her to their facilities.

Wills claimed that her outburst happened during an early stage of a severe manic episode. Her doctor placed her on medical leave shortly after the incident. Wills sent coworkers, friends and family members threatening, offensive and illogical emails and videos during her time away from work. When her doctor permitted her to return to work, her employer put her on paid administrative leave while it investigated her inappropriate behavior.

At the beginning of the investigation, the Superior Court received a letter from Wills’ doctor stating that she suffered from bipolar disorder. The doctor also said she would not cause danger to her coworkers. The Orange County Court decided to terminate Wills after its investigation for four reasons:

  1. Threatening a police department while performing official business
  2. Threatening and inappropriately communicating with her coworkers
  3. Misusing court resources
  4. Exhibiting poor judgment

Wills reacted to the termination with a lawsuit. She sued under the California Fair Employment and Housing Act (FEHA) and alleged that she was fired because of her mental disorder.  The Fourth District Court of Appeals did not deny that her disorder incited her misconduct, but it agreed with her employer and confirmed that Wills’ behavior was a legitimate, nondiscriminatory cause for her termination.

In proceeding cases, such as Gambini V. Total Renal Care, violent outbursts caused by mental disorders were not grounds for termination. This is because courts typically have ruled that ADA protects both the disability and disability-related misconduct unless the behavior was related to criminal activity or drug and alcohol abuse. 

The key difference in Linda Wills’ case is that her threats and violent behavior were aimed at her coworkers, which put her employer on a “razor’s edge,” as the Appellate Court described.  The Orange County Court could have violated the law if it terminated Wills, but it could have also violated the law if its employees were working in an unsafe environment, which the Appellate Court called being “caught on the horns of a dilemma.”

By reviewing the EEOC’s interpretation of ADA, the Appellate Court determined that an employer can discipline disabled employees for violating workplace conduct standards by threatening violence or committing violence against their coworkers. The Appellate Court purposely limited the scope of its decision to protect the disabled from discrimination and also allow employers to protect their staff from threats and actions of violence. Wills and her lawyers petitioned her case to the Supreme Court, but the high court agreed with the Appellate Court’s decision and decided to not review the case.

The Orange County Court’s preparedness with its written policy against workplace threats and violence, as well as its thorough investigation that included several witnesses, helped the Appellate Court determine that Wills’ termination was based on legitimate, nondiscriminatory reasons.

The takeaway from this case for employers is to draft extensive workplace policies that are enforced throughout the organization and record all instances of misconduct. Employers are allowed to distinguish between disability-related misconduct and the disability itself when the behavior threatens a coworker with violence, but solid documentation and supporting evidence is required to prove that disciplinary action is based on nondiscriminatory factors.

Companies should still take heed when addressing misconduct from employees with disabilities. Although Wills provided a victory for employers, suspicious accusations and theorized claims may not be protected by this decision. For additional information on ADA or to discuss your organization’s handbook or workplace policies, please contact a member of CAI’s Advice and Counsel at 919-878-9222 or 336-668-7746.

Photo Source: Mark Fischervictoriapeckham

A Rising Concern: Discriminating Against the Unemployed

Tuesday, September 13th, 2011

JobseekerJobseekers are up against many challenges as America continues to face its worst economic downturn since the Great Depression. Their frustrations peak when they see job postings that include language such as, “No unemployed candidates will be considered” or “Only the currently employed should apply.” This type of wording is currently prevalent on several job boards, including the big players, like Monster and Indeed.

Fourteen million Americans are currently unemployed, and six million of them have been without a job for more than six months according to the National Employment Law Project (NELP). Because the number of jobs the government was hoping to create fell below estimates, unemployed Americans who are seeking positions are playing on an intensely competitive field. In its briefing paper that highlights unemployment discrimination, NELP states that there are nearly five unemployed job seekers for each job opening. To make matters worse, organizations that range from hotels, restaurants, advertising agencies, law firms and universities are limiting unemployed jobseekers’ opportunities by only encouraging people who have jobs to apply to their positions.

Why the Catch-22?

With high unemployment lasting for the past three years and unemployment periods averaging up to nine months, it appears that this exclusionary concept is perpetuating the vexation of 14 million Americans.  NELP reports that more than half of the job postings with discriminatory language against the unemployed come from staffing agencies, but other industries, which include white collar and blue collar jobs, also participate in the practice.

Employers and staffing agencies that look for candidates who are currently working cite a number of reasons for barring the unemployed. Some employers place the blame on recruiting firms that they utilize, claiming that they were unaware of the language and tactics they used to attract talent. Others say the discriminatory practice is an easy way to filter the plethora of applications that they receive. Still, others suggest performance reasons, including a deterioration of skills because of their unemployment, as well as the possibility that they were not laid off because of the recession, but because they were unable to do their jobs well.

Finding Solutions

As expected, the Equal Employment Opportunity Commission (EEOC) is investigating measures it can take to prevent employers from discriminating against the unemployed. Proving that the restrictive language that employers use violates discrimination laws will be hard according to legal experts. Unlike race or gender, the unemployed is not a protected status. However, research is showing that unemployment discrimination is disproportionately negatively affecting blacks, Hispanics and older people. If substantial evidence is found that this language adversely affects various populations, the EEOC might have a case to make discriminatory ads illegal.

The American people are also discontent with employers using discriminatory measures during the country’s most devastating recession. A survey conducted for NELP by Hart Research Associates found that 80 percent of participants thought the refusal to consider unemployed job applicants was very unfair and 10 percent saw it as somewhat unfair. More than 60 percent of those who participated were in favor of proposing legislation that would make it illegal for companies to discriminate against qualified candidates because they are unemployed.

jobseekerRepresentatives Rosa Delauro (D-CT) and Henry Johnson, Jr. (D-GA) introduced the Fair Employment Opportunity Act of 2011 on July 12 to address the growing concern of employers’ practices. If passed, the bill would prohibit employers and recruiting agencies from refusing to consider applicants who are qualified but are not currently employed. In April New Jersey passed a bill similar to the US representatives’ proposed legislation, and now it is illegal within the state to use language that excludes the unemployed in job advertisements.

Because unemployment rates have yet to come down and job creation has become stagnant, employers should take caution when considering posting language about an available position.  The EEOC and NELP are only two of many organizations that are analyzing the procedures of companies that discriminate against the unemployed. If your organization would like information on creating fair, informative and correct job descriptions, please contact a member of Advice and Counsel at 919-878-9222 or 336-668-7746.

Photo Source: Jared Hatfield, bpsusfp

Utah’s Four-Day Workweek: Could It Work for Your Organization?

Thursday, August 18th, 2011

Welcome to Utah

Amid the economic downturn and rising costs of gas and energy, the state of Utah took initiative on reducing its operational costs by mandating a four-day workweek in 2008. The western state required a majority of its state employees to start work earlier andleave later Monday through Thursday to fit 40 hours in four days.  

The federal government standardized the traditional five-day workweek in 1938 with the Fair Labor Standards Act to protect workers from unjust wages and unreasonable overtime. Utah uprooted the traditional five-day workweek to save money and resources. Many state and local governments offer their employees a four-day workweek option, but Utah is the first to make it a requirement for 17,000 of its employees. The state’s ultimate goal for issuing a shorter workweek was to reduce its energy costs by 20 percent in 2015. So far, Utah has reduced its energy use by 13 percent.

Not only have the state’s energy costs decreased, but Utah estimates that because its state employees do not commute on Friday, they have saved nearly $6 million in gasoline. The program also reduced the state’s green house gas emission by more than 12,000 metric tons per year.

Some critics feared that a 10-hour work day could cause employees to be stressed, tired and frequently sick, but program participants discovered different results. Surveys conducted throughout the initiative revealed that there are fewer health complaints, and people are reporting less stress and taking fewer sick days. People also voiced concerns that longer work days could trigger people to exercise less and eat fast food more. Calming these worries, a survey found that only 20 percent of employees feel they eat more fast food, only 30 percent say they work out less and 30 percent say they actually exercise more since the change. Eighty-two percent of the employees surveyed feel content with the government’s new workweek structure.

Utah has saved $1.8 million since the start of its four-day workweek experiment. Operational costs have lowered dramatically and many employees have seen positive health results. Other benefits from the change include: increased volunteerism for outside activities, more time spent with families, and because state buildings now offer longer hours, Utah citizens can accomplish tasks, such as renewing a licenses at the DMV, during later hours.

If your company can provide support for working non-traditional hours and the services that your company provides are not confined by time, a four-day workweek might be a popular option for your team. The strategy, although not feasible for every organization, could prove to be a great solution for cutting costs and increasing employee morale in a down economy.

For more information on reducing workplace costs and strengthening employee morale, please contact a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

Photo Source: rayb777

2011 Ovation Award Spotlight: The Accreditation Commission for Health Care, Inc. (ACHC)

Thursday, May 19th, 2011

As the first health care accrediting agency in the world to achieve the international quality management distinction of certification to ISO 9001:2000, the Accreditation Commission for Health Care, Inc (ACHC) holds a commitment to quality service. The firm stays proactive in learning new quality principles that benefit its customers and employees, and its recent employee engagement program earned ACHC a 2011 Ovation Award in the small employer category (companies with 250 employees or less).

ACHC strives to provide exemplary support to its customers and employees. However, when the company reviewed less than ideal results from a 2008 employee satisfaction survey, its leadership team resolved to implement change.  Because ACHC believes that employee engagement is the central driving point for its business, the agency knew addressing employees’ concerns would be critical to business sustainability and productivity. So, ACHC embarked on its next level of quality: optimal employee engagement.

The company first investigated the reasons for employee dissatisfaction in order to address items from the survey. After uncovering the roots of its employees’ sentiments, ACHC turned to its human resource team and quality assurance department to spearhead the “Total Quality Improvement Initiative.” The program was a comprehensive employee engagement system designed to include every staff member in the planning and execution process for business programs. Based on the Malcolm Baldrige Criteria for Performance Excellence, the initiative indentified the agency’s strengths and opportunities for improvements in employee satisfaction while also encouraging total workforce involvement and innovation.

The new initiative showed the company that each employee has valuable insight into what customers want, so ACHC tapped into their valuable resources to gain knowledge and ideas that would drive business. Through the program’s whole-team brainstorms, employees learned more about the business planning process and ACHC listened to the ideas of its employees, creating team unity.

Overall, the initiative proved to be a beneficial endeavor for both employees and customers. ACHC understood that developing this program was necessary because of its belief that employees who are fully involved in and enthusiastic about their work provide superior customer service and reach business goals.  The unique approach accomplished three measurable outcomes for ACHC:

  1. Increased employee satisfaction scores
  2. Reduced employee turnover
  3. Increased employee team involvement

Since its introduction, “The Total Quality Improvement Initiative” has expanded, and regular cross-sections of employees are involved in ACHC’s strategic planning, including choosing medical benefit plans and new facility locations.

With employee satisfaction at an all-time high and overall employee turnover reduced, it is clear that the ACHC staff is fully engaged. Employee satisfaction directly affects customer service positively and yields more success for the agency. ACHC’s dynamic program that empowered and engaged its business process made the company a clear winner for CAI’s Ovation Award in the small employer category. Companies looking to increase employee morale and productivity should consider implementing a similar initiative.

CAI recognizes North Carolina companies for innovative HR/People solutions with Ovation Awards during its annual HR Management Conference in February.  If you’d like to be considered please send a 2-3 paragraph description of your program to doug.blizzard@capital.org.  The description should summarize the business need, describe how the solution was implemented, and highlight the measurable and/or forecasted business results.

Photo Source: jModus

Are You Using Social Media for Employee Communications Yet?

Tuesday, May 17th, 2011

The post below is a guest blog from Stephanie Clark who serves as the Marketing Coordinator and Social Media Manager for CAI’s employee benefits partner Hill, Chesson & Woody Employee Benefit Services.

Have you seen the social media traffic stats on the night of Sunday, May 1, 2011? While President Barack Obama announced to the world that a U.S. military team killed Osama Bin Laden, Twitter topped 5,000 tweets per second.  Care to guess how many of your employees updated their Facebook status that night? The news spread like wildfire on various social media channels, per CNN’s report, as details unfolded through reputable and highly-followed twitter users.

More and more businesses are jumping into social media to educate consumers and create brand awareness. At the same time, this way of communicating has also changed how organizations approach their own workforce, by offering another method of sending out information. A 2010 Watson Wyatt survey showed the most popular topics to engage employees through social media are collaboration and team building, adapting to change, and promoting health and wellness. On the other hand, for messages around business changes, employees widely prefer face-to-face communication. Social media provides another avenue to engage employees in a way they like to receive information.

Paper memos are a thing of the past. Long-winded emails may be going in that direction as well. Here’s a thought: Try pasting the next employee memo you compose into Microsoft Word and conduct a Flesch-Kincaid readability test. If your memo scores higher than a seventh or eighth grade level, some employees may not understand it. It’s hard for employees to genuinely care about what goes on in your company when information is presented at a level they don’t understand. Keep it simple if you want to reach everyone in your company with the message.

For years now, IBM has engaged with employees through social media, even before they used social media externally for marketing. Companies such as Virgin Media have gone the route of video blogging on a YouTube channel exclusively for employees. Viewers see and hear someone as if they are speaking only to them, and yet a wide audience is being reached.  Also, this offers workers the opportunity for commenting in a public forum.

Who doesn’t like to hold the remote? Like most individuals, your employees probably prefer to control their own communication experience. By asking questions, offering suggestions and learning other employees’ perspectives, they create news that is relevant to them on a level that makes sense. What is a better way to become a true stakeholder? Forums, blogs and social networks are a great way to encourage employees to connect and interact.

If you’re not using social media in your organization yet, internally or externally, it’s never too late to start. Many resources are out there to help you get started. A few helpful links are listed below.

How to create a LinkedIn company page
http://learn.linkedin.com/company-pages/

How to create a Facebook page for your business
http://www.facebook.com/pages/create.php

How to create a YouTube channel
http://www.ehow.com/how_4493894_create-youtube-channel.html

How to create a Twitter account
http://support.twitter.com/entries/100990-how-to-sign-up-on-twitter

How to optimize your Facebook privacy for business
http://blog.hubspot.com/blog/tabid/6307/bid/12067/How-to-Optimize-Your-Facebook-Privacy-for-Business.aspx

Six non-fluff answers to your social media questions
http://blog.hubspot.com/blog/tabid/6307/bid/10268/6-Non-Fluff-Answers-to-Your-Social-Media-Questions.aspx

CAI’s Ovation Awards: 2011 Spotlight

Thursday, May 5th, 2011

CAI has presented Ovation Awards to a number of diverse companies for their even more diverse “people practices” for the past four years. CAI created the Ovation Awards in 2007 to honor exceptional workplaces that have implemented innovative people practices that directly and positively affect their business results. Organizations are encouraged to showcase their HR tactics by submitting a nomination for one of the three award categories, which are separated by size of company: small (less than 250), mid-size (250 to 500) and large (more than 500).

Once nominations are submitted, a panel of HR experts reviews the different programs and selects winners based on whether the companies’ strategies solved an HR or business problem. Some examples of applicable programs include enhancing employee engagement and improving business productivity. Award winners are then announced during CAI’s annual HR Management Conference.

Past recipients of the Ovation Award have included Krispy Kreme (2010, large) for its “Healthy Lifestyle Program,” The Bank of Oak Ridge (2008, small) for its “e-Awards Program” and PPD (2007, large) for its “Employee Engagement” project. Blue Cross and Blue Shield of North Carolina, Burt’s Bees and Capitol Broadcasting Company are also among previous award winners.

The panel of HR experts saw stellar submissions for 2011’s nominations, and at the 2011 HR Management Conference, CAI revealed the three companies that displayed outstanding HR practices for the year. The Accreditation Commission for Health Care (ACHC) received the small company award for itsinnovative “Total Quality Improvement Initiative.” For the mid-size company category, Novo Nordisk Pharmaceutical Industries, Inc, won by building a “Strengths-based” organization, and Rex Healthcare collected the large company award for its workforce planning efforts.

To highlight the 2011 award winners’ accomplishments in HR planning and execution, CAI will spotlight each winner in a blog post that extensively details its award-winning programs.  In the meantime, please take a look at past award winners and their presentations here.

We are also always on the lookout for Ovation Award nominations, so if your company has implemented an efficient HR-related program, please consider submitting a nomination for 2012. We will post more information on the nomination criteria and deadline at a later date. Please contact Doug Blizzard at doug.blizzard@capital.org with any questions regarding the awards.

Image Source: Werner Faymann

Retaining and Benefiting From Long-Term Employees

Tuesday, May 3rd, 2011

All successful company leaders and senior management executives understand the value that comes from long-term employee relationships. With low levels of turnover, organizations are better positioned for success, internal consistency and stability, but how can companies get to the point where employees consider their place of employment permanent instead of temporary? It all comes down to maintenance, recognizing individual and departmental needs and making those needs an overall company priority. Here are five ways to keep your employees’ loyalty at a high level:

Motivating and challenging workload – Boredom is one of the fastest ways to have your staff turn to job employment search engines. There is little or no excitement that comes from performing the same routine day-to-day. Even though the mundane tasks still need completion, make sure employees are participants in interesting projects and that their workload is challenging.

Acknowledgement and appreciation of work well doneConfirmation of strong performance is more effective than you may realize. By publicly acknowledging the achievements of your staff, you remind individuals of their own personal value to the organization, which is critical. When employees can visually recognize that the work they do not only matters, but makes a difference on a companywide scale, they have little reason to find satisfaction elsewhere.

Upward growth opportunities – When given a challenging workload and excelling at the tasks at hand, employees sooner or later are going to inquire about internal advancement. Be open to discussing growth opportunities and remember, employees are not looking for instantaneous promotion; they just want to know that there is an open path for management consideration.

Healthy working environment – Does your company operate under high levels of tension, stress or anxiety? Monitor the environment your employees are exposed to and try to keep high levels of stress and concern within executive offices. When employees are aware of all elements of the organization, performance levels may decrease because of the concern and worry that arises.

Personal relationships and understanding – Employees are likely to remain loyal when relationships have a personal component. It’s important to maintain the subordinate-management roles, but make sure that employees understand you are there for support, mentorship and guidance.

Long-term employees have a strong organizational knowledge base that will assist in the teaching and training of new company members. Investing in your current staff will always benefit you and your company in the long run.

For additional information on employee retention, please call a member of CAI’s Advice and Counsel team at (919) 878-9222 or (336) 668-7746.

Photo source: A Pillow of Winds

Telecommuting – How Will It Impact Your Company From an HR Standpoint?

Thursday, January 27th, 2011

Early morning wake-up calls, clocking in, clocking out and office cubicles have been the norm for working Americans, but as technology continues to grow, so do the number of Americans who no longer make the morning commute. Recently even President Obama expressed his support for telecommuting programs.  Although the idea of working from home may sound like an employee’s dream, it’s vital to fully assess the pros and cons before incorporating such a program into your company policy.

Since a comfortable, flexible working environment is recognized by potential employees as one of the most important aspects of job choice, telecommuting applied appropriately can be used advantageously by Human Resources professionals. By providing the option to telecommute, companies offer employees a career that fits their lifestyles and can stand out among the competition.

How can your company achieve the best of both worlds and allow employees a flexible schedule with the option to work from home, while still producing the same results as if they were operating in-house? Consider the following, and make sure the benefits are equal for both your employees and your company.

Employee availability – Consider parents who start with an early morning and shut down their computers when their children return home from school. Guidelines allowing such flexibility need to be clear – the hours of availability should be concrete and unchanging  for reasons of dependability and accountability.

Virtual communication –Company meetings can still run cohesively without constant face-to-face communication through the comparable use of video conferencing, Skype and other advanced technology.

Distractions – While the office is used for the sole purpose of accomplishing company work,  those working in an environment used for sleeping, eating and relaxation must have a higher level of discipline. Character evaluation is imperative before considering telecommuting. Employees who are trustworthy, time-oriented, focused and who work without constant monitoring prove to be strong candidates.

Maintaining office relationships – Creative, original and innovative ideas are often developed through  collaboration, so the last thing any company wants is for its employees to operate as noncommunicative islands. With staff not interacting on a day-to-day basis, it’s critical to coordinate events, gatherings or lunches, to maintain a team mentality.

Maintaining company security – When employees have the opportunity to access company content from home, you must  provide additional IT protection to staff computers and servers to assure private information is monitored and inaccessible to outsiders.

With the proper protection, procedures and policies in place, many companies see a significant drop in overhead expenses and increased employee satisfaction from incorporating telecommuting. As with any change, it’s important to recognize that telecommuting can only be as successful as the individuals who execute the process. If your company chooses to establish a telecommuting program, plan efficiently, monitor productivity and avoid miscommunication issues.

For additional information, please call a member of CAI’s Advice and Counsel team at (919) 878-9222 or (336) 668-7746.

Photo source: richardmasoner

Banning the Box – Is North Carolina Next?

Tuesday, January 11th, 2011

Initial stigmas, concerns and stereotypes – they always seem to be the preliminary reaction when potential employees check “yes” as a convicted felon. Opinions are formed and conversations may end before they even begin.

When we blogged back in November about the criminal history questions, Massachusetts was the center of conversation as it implemented the Ban the Box law, which prohibits the asking of criminal history questions during an initial application for employment. Now a hot topic debate, the law has made its way to North Carolina. The Raleigh Second Chance Alliance, the Community Success Initiative and other advocacy groups have pushed to incorporate the same law with a Ban the Box rally on the steps of Durham City Hall.

With any drastic change, apprehension and colliding opinions should be expected. For transformations to occur, all viewpoints must be heard. Evaluate both outlooks and let us know what you think is best for the convicted felon, the employer and North Carolina overall.

Ban the Box Benefits:

An estimated 1.6 million people reside in North Carolina with criminal records attached to their names. Whether their record is long or short, misdemeanor or felony, these individuals live in neighborhoods, attend local churches and are active in the community. Most can assimilate back into a normal lifestyle free of judgment – until it comes to pursuing stable employment. Convicted felons may no longer reside behind the county penitentiary, but many feel they find themselves still behind bars because of employment limitations.

At the heart of this law, the goal is to allow convicted felons an opportunity to be equal and on the same playing field as their competition. Removing criminal history questioning from the initial application process doesn’t assure employment, but allows individuals a platform to provide a detailed explanation, more than a simple box could offer. Providing applicants the opportunity to explain the severity of their crime, the number of years since the offense took place, and the recovery and rehabilitation process will open doors and allow employers to see the individual as more than the label he or she may carry.

Ban the Box Drawbacks:

The reality is that people just want to know the truth, and they want to hear it up front. There will obviously be resistance to banning the box, because many employers don’t want to waste time screening and interviewing applicants if they aren’t a true potential candidate.

With this law solely focused on the public sector, North Carolina employers and officials have real concerns. Raleigh City Manager Russell Allen believes “the fact of the matter is that employees in the public realm get very close to people’s homes and children.” Unlike being confined to a cubicle 40 hours a week, the majority of public sector job opportunities carry high levels of people interaction; therefore, a person’s background needs to be fully disclosed.

What are your thoughts? How do you think North Carolina and its employees will be impacted if the box is banned?

http://www.flickr.com/photos/17813892@N00/2063910725/

Seven Things About FMLA and Other Leave Rights that N.C. Employers Need to Know

Thursday, November 25th, 2010

One of the more challenging compliance issues for employers is managing family and medical leave and other leaves of absence, and knowing when to safely terminate employment. Kimberly Korando with Smith Anderson law firm guided CAI members who participated in the recent members-only “Ask the Experts” sessions on the interplay of company leave policies, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act of 1990 (ADA), the ADA Amendments Act of 2008 (ADAA), and North Carolina’s Retaliatory Employment Discrimination Act (REDA).

Following are some of the practical takeaways from this session:

1. REDA and ADAA have different requirements.

North Carolina’s REDA law allows employers to have a consistent termination policy that applies across the board regarding workers’ compensation leave.  The ADAA requires a case-by-case evaluation when an employee needs extended leave to determine if a reasonable accommodation can be made (consistency is not applicable).

2. Review policy language on FMLA eligibility.

Be sure that your employee-eligibility statement for FMLA includes all of these requirements:  employed for at least 12 months; worked 1,250 hours over the previous 12 months; and works at a worksite with at least 50 employees within 75 miles.  According to Ms. Korando, if the policy leaves out any of the criteria, you may be required by the courts to grant FMLA even if the employee is not eligible.

3. Consider the different requirements of FMLA and ADA on return to work.

FMLA requires an employer to return the employee to the same or an equivalent position.  ADA requires the employee’s return to the original position.  This is extremely important to remember when the employee is covered by both the FMLA and ADA, and the employee returns before the end of the FMLA (unless he or she is unable to perform the original position with or without reasonable accommodation).

4. Document the interactive process.

Court cases provide employers with tips on the court’s expectations of how they should handle the ADA process.  One “nugget” Ms. Korando gleaned was that the courts expect employers to document the interactive process and what was considered and discussed with the employee regarding reasonable accommodation and/or undue hardship.

5.   Check third party vendor letters.

If you have agreements with vendors that stipulate automatic termination of temporary employees if they are unable to work, include the statement unless other action is required by applicable federal or state law. There are joint employment responsibilities under FMLA and ADA.

6.   Indefinite leave is not a reasonable accommodation in North Carolina.
The 4th circuit court has said that it is unreasonable to expect an employer to hold a job or consider other jobs or extended leave when the employee’s doctor states the employee will be on leave indefinitely.  The employee can be terminated if this is the case (after completion of eligible FMLA leave).

7.   End of leave communications.

Communicate with the employee by documenting in writing a summary of the leave dates, type, etc.  Include the last day worked, the dates of FMLA and the date job reinstatement responsibilities ended, extended leave or other reasonable accommodations made, and the date of termination.

If you have questions about FMLA or other leave rights, please call a member of CAI’s Advice and Counsel team at 919-878-9222 or 336-668-7746.

Photo Source: Michael