Posts Tagged ‘EEOC’

New Publications Issued by EEOC on Religious Dress and Grooming in the Workplace

Thursday, May 8th, 2014

In today’s post, CAI’s Senior HR Advisor and Government Relations Specialist George Ports shares updates from the EEOC on Religious Dress and Grooming in the Workplace.

George Ports, Senior Executive and HR Advisor

George Ports, Senior Executive and HR Advisor

The US Equal Employment Opportunity Commission (EEOC) recently issued two new technical assistance publications addressing workplace rights and responsibilities with respect to religious dress and grooming under Title VII of the Civil Rights Act of 1964.

The guide, entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” and an accompanying fact sheet, provide a user-friendly discussion of the applicable law, practical advice for employers and employees, and several case examples based on past EEOC litigation.

Employers covered by Title VII must make “dress code” accommodations to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer’s business. When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.

Topics covered in the publications include:

  • prohibitions on job segregation, such as assigning an employee to a non-customer service position because of his or her religious garb;
  • accommodating religious grooming or garb practices while ensuring employer workplace needs;
  • avoiding workplace harassment based on religion, which may occur when an employee is required or coerced to forgo religious dress or grooming practices as a condition of employment; and
  • ensuring there is no retaliation against employees who request religious accommodation.

Religious discrimination charges relating to a wide range of issues have steadily increased. In fiscal year 2013, the EEOC received 3,721 charges alleging religious discrimination.

If you have questions about religious dress and grooming in the workplace, please contact a member of CAI’s Advice and Resolution Team at 919‑878‑9222 or 336‑668‑7746.

Further information about the EEOC is available at its website at www.eeoc.gov.

When Must Employers Seek a Religious Accommodation Regarding a Personal Appearances Policy?

Thursday, April 10th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information with employers about religious accommodations for employees.

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs and is prohibited by the federal law known as Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC), which is a federal agency, is responsible for enforcing this law. The law protects not only people who belong to traditional organized religions, like Buddhism, Christianity, Hinduism, Islam and Judaism, but also others who have sincerely held religious, ethical or moral beliefs. Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.

Unless it would be an undue hardship on the employer’s operation of its business, an employer must reasonably accommodate an employee’s religious beliefs or practices. This applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. These might include, for example, wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an employee’s observance of a religious prohibition against wearing certain garments (such as pants or miniskirts).

Also, as mentioned above, an employer does not have to accommodate an employee’s religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. For example, workplace safety issues, like the prohibition of wearing loose garments around machinery, don’t need to be overlooked for the sake of accommodation.

When an employee or applicant needs a dress or grooming accommodation for religious reasons, it is the employee’s responsibility to notify the employer that he or she needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant the accommodation.

The EEOC has issued guidance on religious discrimination issues in the workplace, which is located at http://1.usa.gov/rel-dis. In addition, the EEOC has a listing of best practices in the workplace regarding religious issues, which is located at http://1.usa.gov/bp-rel.

If you have questions about religious accommodations, please contact a member of CAI’s Advice and Resolution team at 919‑878‑9222 or 336‑668‑7746.

 

Woman is Fired for Being Old and Ugly – A Win for the EEOC

Tuesday, October 8th, 2013

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2013 Triad Employment Law Update.

Robin Shea

Robin Shea, Partner at Constangy, Brooks & Smith

Let’s say your CEO fires a 53-year-old woman and says he’s doing it because she’s “old and ugly.”

If she finds out about it, can she sue for age discrimination?

My guess is 100 percent of you would say, “What are you, stupid? Of course she can!”

The following is a true story: A property management company in Oklahoma hired a new CEO. After his first month on the job, he terminated seven employees, as new CEOs tend to do. The next day, he fired an eighth — a 53-year-old property manager named Ms. Strength.  According to three people, the CEO privately told them that he terminated Ms. Strength because she was “old and ugly” and that he wanted someone “younger and prettier” in her position, and that he didn’t think she could meet potential tenants and entertain existing tenants after work because she was “older.” (The CEO denies having made any of these comments.)

Oh, and the company gave Ms. Strength a letter saying her job had been eliminated, when it actually hadn’t.

As you can imagine, the lawyers at the Equal Employment Opportunity Commission, having taken a few hits recently, found the case somewhat attractive from a litigation standpoint. In fact, they were like a wild dog smelling red meat.

So the EEOC sued the company on behalf of Ms. Strength for age discrimination, and the company filed a motion for summary judgment. You have to admit, that took nerve. Actually, it probably wasn’t nerve so much as desperation. Juries are notorious for sympathizing with older workers, and the company did not want this case to get to a jury.

I don’t know if there is anything called a “Hail Mary” motion for summary judgment, but there should be, and I believe this was one.

What in the world did the company argue? OK, I’m not saying these are good arguments, but here is what they said:

1. The Age Discrimination in Employment Act requires the plaintiff to show that “but for” a discriminatory motive, she would not have been fired or otherwise subjected to adverse employment action. Assuming that the CEO really made these comments (as the company was required to do at the summary judgment stage), he said that Ms. Strength was fired not only because she was old, but also because she was ugly. Therefore, age discrimination was not his only motivation — “looksism” was the other. And since he had two motives, the company should get summary judgment on the age discrimination claim.

Of course, the court shot this down. First, the court said, just because age has to be the “but for” cause, that doesn’t mean that it has to be the only cause. It’s more like the straw that broke the camel’s back. You can have other causes, but if the discriminatory cause is the one that puts the camel in traction, then the discriminatory cause is still the “but for” cause. My esteemed colleague Donna Ballman pointed this out not too long ago, after the Supreme Court’s decision requiring “but for” causation in retaliation cases.

Second, the court said, the CEO may have thought Ms. Strength was “ugly” only because she was “old.” You know the type, amIrightoramIright?

Strike one!

2. Then the company’s lawyers got even more creative. They were like, Oh, well, even if we have to go to trial on the age discrimination claim, the EEOC shouldn’t be allowed to get more than $100,000 because Ms. Strength admitted in her deposition that she would take $100,000.

(Under the ADEA, a prevailing plaintiff can recover back pay and benefits, front pay and benefits, plus that much again as liquidated damages, and — assuming she had her own attorney — attorneys’ fees, expert witness fees, and costs. In all likelihood, for a 53-year-old with a responsible position, significantly more than $100,000.)

Here’s what happened in the deposition. The company’s lawyer asked her, “If I could write a check to you, what amount would make you happy?” After some objections and argument between the lawyers, Ms. Strength said, “To be treated fairly . . ..” The lawyer said, “I’m asking for a figure. I want to know the amount. . . . You walk out of here today and have a Merry Christmas, what amount would that be?” Ms. Strength said, “100,000.”

Settlement negotiations are normally inadmissible. The EEOC (correctly, in my opinion) said that this was an inadmissible “settlement negotiation,” and also that the EEOC wasn’t limited to seeking what Ms. Strength might have accepted. The court agreed.

Strike two!

3. Finally, both the EEOC and the company moved for summary judgment on Ms. Strength’s alleged failure to mitigate her damages. The court granted the EEOC’s motion and denied the company’s.

(Does that make four strikes? And have I mixed enough metaphors in this post?)

I think the moral of this story if you’re an employer, and especially if you’re in HR or in-house counsel, is to do your best to make sure your executives don’t do stupid things, like firing people because they’re over the age of 50. (Or, for that matter, because they’re ugly — appearance discrimination is against the law in many jurisdictions, plus it’s mean to pick on people just because they’re homely.) Once somebody at the CEO level (allegedly) pulls a stunt like this, there is very little that you can do as a company except to give the plaintiff that check for $100 grand fast, before she changes her mind.

Robin Shea is presenting at the 2013 Triad Employment Law Update on November 5th at the Grandover Resort in Greensboro. In addition to receiving best practices for hiring and firing employees, attorneys from Constangy, Brooks and Smith, LLP will provide you with the most recent updates in state and federal employment law. Register today at www.capital.org/triadlaw.

Minimizing Potential Liability for Workplace Harassment Issues

Tuesday, May 28th, 2013

John GuptonCAI’s Advice and Counsel Team answers several questions from members daily. One question that the team members often receive deals with workplace harassment—what should our organization be doing to minimize our potential for liability for workplace harassment issues? In today’s post, Advice and Counsel Team Member John Gupton provides a number of solutions for minimizing harassment at your workplace:

In regard to the issue of unlawful workplace harassment, a company must show that it took immediate and appropriate action to eliminate the offensive conduct. Prevention is the best tool for avoiding harassment charges. For this reason, employers should:

  • Maintain a written policy on harassment, communicate it to all employees, and provide multiple avenues for employees to register any complaints.
  • Provide training to supervisors on a regular basis.
  • Make it clear to all supervisors and employees that harassment on the job will not be tolerated.
  • Place particular emphasis on the company’s strong disapproval of this conduct.
  • Require members of management to report any known harassment.
  • Thoroughly investigate any claims of harassment.
  • Provide appropriate discipline in cases of harassment.

Furthermore, under EEOC enforcement guidance, an employer’s workplace harassment policy must prohibit harassment on all protected categories, not just sex harassment (i.e., harassment on the basis of race, color, sex, religion, national origin, age, genetic information and disability status). According to these EEOC guidelines, the policy must include at a minimum:

  • A clear explanation of the prohibited conduct.
  • Assurance that employees will be protected against retaliation.
  • The ability to make a complaint to more than just the employee’s immediate supervisor.
  • Confidentiality– to the extent possible.
  • Prompt, thorough and impartial investigations.
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

If you have questions regarding harassment, please contact a member of CAI’s Advice and Counsel Team at 919‑878‑9222 or 336‑668‑7746.

7 Takeaways from the 2012 Triad Employment Law Update

Thursday, November 15th, 2012

Last Wednesday, Nov. 7, CAI hosted its annual Triad Employment Law Update at the Koury Center in Greensboro. More than 160 HR professionals and company executives attended the conference to receive the latest updates in state and federal employment law.

Lawyers from Constangy, Brooks & Smith, LLP shared presentations with attendees on a number of topics related to recent changes in regulations. Some of the topics covered included updates from the new NLRB, best practices for immigration law compliance and changes from healthcare reform.

Below are seven key insights from the informative law update:

NLRB (National Labor Relations Board) Social Media Policy

  • Employees using social media to complain about their employers may be engaged in protected concerted activity under NLRA
      • Protected posts: seeking advice from coworkers, calling supervisors names, criticizing company actions
      • Unprotected posts: don’t involve other employees or individual gripes, criticizing the company’s clients and complaints to third parties
  • The board continues to offer policy guidance on a variety of social media cases

EEOC (Equal Employment Opportunity Commission) Issues Final ADAAA (American’s with Disabilities Amendments Act) Regulations

  • Eliminated “per se” list of covered disabilities
  • Rejects minimum duration rule that results in short term condition being a disability

New EEOC Regulation on Age Discrimination

  • November 16, 2011—EEOC approves final regulation
    • Now easier for plaintiffs to prove age discrimination in disparate impact cases
    • Facially neutral practices that adversely impact older employees is discriminatory unless employer can prove “reasonable factor other than age”

OFCCP (Office of Federal Contract Compliance Programs) and Proposed Rule on Hiring Goals for Disabled

  • Proposed rule requires federal contractors to set a goal that 7 percent of each job group should be persons with disabilities
    • Require applicants to self-identify as disabled

Correct Your I-9s

  • In general, never do a new I-9,  no matter how bad the errors
    • Common errors that can be fixed: employee didn’t sign, employee didn’t date, employee didn’t fill in “A” number, employee didn’t fill in expiration date, employer didn’t fill in date of hire, employer didn’t fill in street address of company
    • Errors that can’t be fixed: not completing form within three days of hire and missing information from former employees

Avoiding Whistleblower and Retaliation Claims

  • Whistleblower: employer violation of law, rule or regulation
  • Retaliation: related to employee’s individual rights
  • The following are protected from retaliation:
    • current employees, former employees, job applicants and associates of those employees who engage in  protected activity
  • Three elements make up a claim:
    • Protected activity, adverse action and causal connection
    • Employee must have a good faith belief that there was a violation of a law when they engaged in protected activity (Title VII)

Effects of Healthcare Reform

  • Several mandates and changes become effective
    • Implementing external review processes
    • W-2 reporting of the value of employer provided health benefits
    • Summary of Benefits and Coverage (SBC) to be given to all participants at enrollment and at each subsequent annual open enrollment
    • Automatic enrollment for employers with more than 200 full-time employees will be required for new full-time employees, with an opt-out notice
    • Health flexible spending account limit will be $2,500

For further assistance on staying compliant with state and federal employment laws, please call a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

5 Egregious Errors that Endanger Employment Investigations

Tuesday, October 18th, 2011

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2011 Triad Employment Law Update.

Now that the Supreme Court has officially recognized “cat’s paw” liability for employers whose decisions are tainted by an individual with an unlawful motive, it is more important than ever for employers to conduct workplace investigations that are above reproach.

And because it’s more fun to talk about mistakes than what people do well, I’m going to focus on five workplace investigation errors that I see regularly.

Error No. 1. The man* who knew too much. This is a very common mistake when the investigator is someone from the same worksite as the individuals involved, and knows the “cast of characters.” “TMI” is not a good thing. Hear me out. The problem is that someone who already knows the cast of characters can have a very difficult time keeping an open mind.

*The masculine shall be deemed to include the feminine, and vice versa.

Ideally, a workplace investigation will be done by someone from outside who can investigate objectively. But if the investigation absolutely must be done by someone who knows everyone involved, the investigator should keep in mind the cliche, “Even a stopped clock is right twice a day.” Just because the complaining employee is a known drama queen and the accused is a thrice-decorated war hero who rescues little kitties from the tops of trees and gives all of his money to the poor (or the complaining employee is a lovable Sunday school teacher who drives only 15 miles a week, and the accused is Tiger Woods), it is possible that, in this case, just this once, the roles are reversed. OK, probably not, but at least as an investigator you should keep that attitude to the best of your ability. You can turn your brain back on when it’s time to assess your evidence and determine what really happened.

Error No. 2. Dangling leads. I cannot tell you how many times I’ve been asked to review an employer’s investigation, and the notes say, “Joe didn’t see Bill make a pass at Mary, but he said that we should talk to Susan, who works in the same area and might have seen something.” I scour through the rest of the notes to find the interview of Susan, to no avail. The reason? Nobody followed up on Joe’s suggestion that Susan be interviewed. Fortunately, we usually catch this type of thing while there’s still time to go back to Susan and find out what, if anything, she knows. But companies shouldn’t have to waste precious legal fees hiring lawyers to point out such obvious omissions to them. (Save us for the hard stuff!) Investigators need to follow all leads provided by the accuser, the accused, and the witnesses. If they don’t, and if the mistake isn’t corrected before there is an EEOC charge or lawsuit, you can bet the government/plaintiff’s lawyer will use the lack of follow-up to its/his/her advantage.

Error No. 3:  Accepting conclusions as “facts.” Another mistake I see all the time. Investigator asks, “Is Tifanyea sexually harassing the men she works with?” Amber replies, “I feel that Tifanyea is very inappropriate with the guys.” Or my personal favorite: “Oh, you know, Tifanyea is Tifanyea.” These are not facts. These are conclusions, and they don’t tell you anything. A good investigator will say, “Amber, tell me what Tifanyea does with the guys that you consider inappropriate,” or  “Tell me what you mean when you say Tifanyea is Tifanyea.” If the investigator doesn’t do it, you can be sure that the EEOC or a plaintiff’s lawyer will.

This, by contrast, is a factual statement: “Yesterday, I overheard Tifanyea telling Dave that his jeans really made his butt look cute. Dave turned bright red and walked away.” Or this: “Every day, Tifanyea is talking about how ‘hot’ Steve is. Steve never says anything to her, but he’s told me several times that he is uncomfortable and tries to avoid her.”

See the difference? Now you have some information! 

Error No. 4: “You don’t wanta get mixed up with a guy like me, Pee-wee. I’m a loner. A rebel.” And you know those “Do not remove under penalty of law” tags they put on mattresses? Well, I cut one off! (Sorry – I got carried away.) In all cases, and especially if the investigation is conducted by the man* who knew too much (see Error No. 1), someone else ought to review the findings of the investigator to make sure that all leads have been followed (see Error No. 2) and that conclusory statements have been supported by facts (see Error No. 3), and that there is adequate factual support for the preliminary conclusion of the investigation. The reviewer should also assist in determining what really happened and what the appropriate action should be. The reviewer ideally should be an in-house attorney, a corporate-level Human Resources professional, or an outside attorney, preferably with expertise in employment law. He or she should also be someone who is not personally involved with the cast of characters, or only minimally involved. 

Error No. 5: “We will keep everything you say strictly confidential. Except, of course, when we talk about it.” It is impossible to keep an investigation completely confidential. You cannot interview accused parties or witnesses without disclosing at least some of the reason for asking the questions. If you tell an employee that everything will be kept confidential, and then she finds out that you’ve been talking, she is rightfully going to be ticked off at you. Better to say, “We will keep everything that you say as confidential as we can, but of course we may have to talk about this with other people involved in the investigation. I can assure you that we will not discuss this with anyone who doesn’t have a legitimate need to know.” Employees are not stupid. They will understand and will appreciate your honesty.    

CAI’s 2011 Triad Employment Law Update, scheduled for November 9 at the Koury Center in Greensboro, will provide additional information for conducting successful employment investigations.  The conference will also provide news and material on several legal topics relevant to employers, including ADA, Wage and Hour, Workers’ Comp Reform, FLSA and Immigration. Register today at www.capital.org/triadlaw.

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

The EEOC’s 5 Warnings about Medical Leaves and the ADA

Tuesday, October 11th, 2011

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2011 Triad Employment Law Update.

Leave of absence as a reasonable accommodation under the Americans with Disabilities Act is a smokin’ hot subject these days, particularly in light of the ADA Amendments Act and its regulations, which expand the ADA’s coverage to a dramatically larger population, the “new,” more activist U.S. Equal Employment Opportunity Commission (EEOC)  under Chair Jacqueline Berrien, and two recent multi-million-dollar settlements in leave-of-absence lawsuits brought by the EEOC against Sears, Roebuck & Co. and Supervalu, Inc. (Jewel-Osco).

John Hendrickson, the EEOC’s Regional Attorney for Chicago, said that these settlements contained five lessons for employers, and that’s what I’d like to talk about today because Hendrickson’s points are consistent with warnings we’ve been giving to employers for quite some time.

1. An “inflexible period” of leave will not satisfy ADA requirements. Most of the employers I’ve worked with have very generous leave of absence policies — one employer I know offers up to two years of leave for a single medical condition (and possibly more, if the employee contracts a new condition). However, many policies provide for “automatic” termination if the employee’s leave exceeds the designated period of time.

Nunh-unh, no can do, says the EEOC.

If the employee needs, say, two years plus two weeks, but then will be able to return to work, you have to consider granting that additional two weeks.

Or, if the employee can come back but needs reasonable accommodations (including reassignment to a vacant position), you have to consider allowing the employee to come back in the new capacity.

And when I say “consider,” I mean, seriously. I mean, if you decide to say no, you’d better have a darned good reason.

Your next question may be, Well, if our leave is so generous and we still have to do all this when an employee has been out of work (and probably receiving disability benefits or workers’ compensation), then why on earth do we want to offer so much leave in the first place? And my answer to that would be, Good question, and a point that was made by an employers’ lawyer who testified at the EEOC hearing. You can shorten the “maximum leave” under your policy, as long as you comply with the requirements of the Family and Medical Leave Act. (You should check applicable state laws, as well.)

2. “Appropriate leave” requires an “individualized assessment” when the designated leave period expires, if not before. See #1. The “individualized assessment” would include determining whether the employee needs additional leave beyond the official company maximum, and whether the employee can come back to work with a reasonable accommodation.

Many employers still require employees returning from medical leaves of absence to be “100 percent recovered,” or able to return to work without restrictions. These requirements have arguably violated the ADA from the get-go (in my opinion, they have), but there is no question that they should be scrapped in our modern era. If an employee has restrictions, the employer is supposed to assess whether the employee can return to work with a reasonable accommodation. If not, then it may be ok to terminate. But if so, then the employer should allow the employee to return to work.

And, have I mentioned that “reasonable accommodation” includes reassignment to a different vacant position?

3. Keep your friends close, and your leave administrator and ADA decisionmaker closer. Many employers outsource leave administration to a third party. Meanwhile, the person making decisions on ADA accommodations is usually someone in Human Resources, in consultation with the employee’s supervisors and managers, and possibly legal counsel.

This is a fine arrangement, as long as the leave administrator stays in close contact with HR or legal counsel, and knows how to identify potential ADA issues. (Which should be a cinch now that virtually everyone on an extended medical leave qualifies for ADA coverage.)

That said, third party administrators, or even in-house leave administration “specialists,” should almost never be the ones to terminate an employee for hitting the maximum allowable leave. A best practice would be for the leave administrator to refer these employees to Human Resources or legal counsel for an ADA assessment. The decision to terminate, extend leave, or bring back to work with or without reasonable accommodations should be made by HR/Legal in consultation with the appropriate operations management.

4. Ya gotta talk to the employee. The reasons for this rule are too numerous to mention. From a pure morale standpoint, it’s always good to stay in touch with an employee on medical leave because it makes the employee feel that she’s still “part of the family” and makes return to work that much easier. But just in case these warm and fuzzy reasons aren’t enough to satisfy you, allow me to use more persuasive methods. (Imagine Dr. Evil laugh here. Mwahahaha.)

Many jurisdictions require that the employer and employee conduct an “interactive process” when discussing possible ADA accommodations, and the EEOC takes this position as well. The “interactive process” is fancy-lawyer-talk for having a discussion with the employee (ideally, face-to-face, but phone or email will suffice if the employee can’t come in) about possible reasonable accommodations. In these jurisdictions, the failure to engage in the interactive process is an ADA violation in itself.

Even in jurisdictions like mine, which do not require an interactive process, failing to engage in the process means that the employer “assumes the risk” if there is an accommodation that might have worked but was missed because the employer didn’t talk to the employee.

For these reasons, I strongly recommend that all employers, no matter where they are located, discuss directly with employees their reasonable accommodation options and get the employee’s suggestions. (Employers with unions will, of course, have to include the union representatives in these discussions.)

5. Better get used to being sued by the EEOC. The agency believes that private plaintiffs’ attorneys will not usually have the resources to be able to pursue these “systemic” discrimination cases involving automatic terminations at the end of medical leaves. 

So, to paraphrase all those spam email jokes that we love so much, you may be a defendant in an EEOC lawsuit if

*You have a “100%-recovered/no restrictions” requirement for return from a medical leave of absence;

*You automatically terminate employees who reach their maximum leaves without making “individualized assessments”;

*You delegate all of your medical leave terminations to your third-party administrator, or your benefits administrators; or

*You don’t engage in “the interactive process” before automatically terminating employees who reach their maximum leaves.

(Sorry that wasn’t the least bit funny. Hey – just like the spam email jokes!)

Generally speaking, the EEOC is a formidable plaintiff. Unlike private plaintiffs’ attorneys, the agency does not have a strong economic motivation to settle cases early and inexpensively. They’ll serve you with aggressive written discovery and requests for documents, and they’ll want to take everybody’s deposition. They’ll file motions and fight every motion that your side wants to file. They dig “systemic” cases, where they can get large verdicts or settlements that they can post on their “Newsroom” web page. This is not to say you can’t beat them, but most employers will prefer being in compliance to being a test case.

Forewarned is forearmed, as they say.

CAI’s 2011 Triad Employment Law Update, scheduled for November 9 at the Koury Center in Greensboro, will provide additional information for staying compliant with FMLA and ADA regulations.  The conference will also provide news and material on several legal topics relevant to employers, including Wage and Hour, Workers’ Comp Reform, FLSA and Immigration. Register today at www.capital.org/triadlaw.

Government Audits: Readiness is Key

Tuesday, May 24th, 2011

Preparing your company for a government investigation is important as the current administration increases the amount of money and resources allocated to auditing companies from different industries and of various sizes. Although your company might follow correct policies and procedures mandated by the government, communication from a displeased worker or fault-finding town citizen can create cause for an investigator to review your workplace standards.

For some audits, such as an OSHA audit, inspections are conducted without advance warning to the organization, so attentiveness to rules and regulations is vital. Creating an action plan for the possibility of an inspection is critical to avoiding costs, penalties and loss of credibility associated with a bad review. Here are a few tips that are applicable to all audits and will ensure a successful evaluation:

  1. Keep Staff Informed! Even though some audits occur without warning, audits or investigations that are expected should be on everyone’s radar. Managers should be aware of the scope of the audit and when it is slated to take place. Company leadership should also inform employees that cooperating with the auditor is necessary to ensure a smooth review process.
  2. Organize! Organize! Organize! Employee documentation, computer files, financial information and similar records should be neatly arranged and easily accessible for the auditor. Retrieve records kept at off-site locations as well. Organizing documents before the auditor’s arrival will allow you to identify and locate missing or misfiled information. Failure to keep records readily available can result in a slower investigation process or several follow-up visits from the auditor.
  3. Take Interviews Seriously! No matter which type of audit your company encounters, preparing for questions that might arise is crucial. Some report that the initial management interview is the most influential part of the process, because it sets the course for the remainder of the audit. Demonstrating preparation during this component will alert the auditor that your company takes the investigation process seriously. For interviews with employees, allow the auditor to speak with them during work hours to avoid contacting them at home. Although you should avoid explicitly telling your employees what to do during an interview, it is important to make them aware of their rights during the process.

CAI offers an Investigation Survival Webinar Series for more information and tips that apply to audits. The program includes seven 90-minute webinars designed to guide you through various government investigations, including ICE, EEOC, Wage and Hour, and OSHA audits. Led by experienced professionals who have supported many employers through different investigations, the series will help answer any specific questions you have concerning audits. You can take the courses individually, or you can register for all seven and receive a volume discount.

For additional information or to register, please visit www.capital.org and use the search code CISWS.

Photos Source: erix!

ADA Amendments Act Regulations Confirm Broader Definition of “Disabled”

Tuesday, April 19th, 2011

The post below is a guest blog from Laura Bibb, JD, who serves as the Compliance Officer for CAI’s employee benefits partner Hill, Chesson & Woody Employee Benefit Services.

On March 25, 2010, the Equal Employment Opportunity Commission (EEOC) issued final regulations implementing the ADA (Americans with Disabilities Act) Amendments Act, which was signed into law by George Bush on Sept. 25, 2008.

These regulations, which become effective May 24, 2011, provide clarification for the ADA Amendments Act.  Specifically, the regulations state that the primary purpose of the ADA Amendments Act is to “make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.”

The ADA and the final regulations use a 3-prong approach to define disability:

  1. A physical or mental impairment that substantially limits one or more major life activities; or
  2. A record of a physical or mental impairment that substantially limited a major life activity; or
  3. When a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor.

The regulations confirm that the definition of “disability” is expansive and should be broadly construed.  Additionally, the regulations identify the following specific impairments that will be easily concluded to be disabilities that substantially limit a major life activity:

  • Deafness
  • Blindness
  • Intellectual disability
  • Partially or completely missing limbs
  • Mobility impairments requiring the use of a wheelchair
  • Autism
  • Cancer
  • Cerebral palsy
  • Diabetes
  • Epilepsy
  • HIV infection
  • Multiple sclerosis
  • Muscular dystrophy
  • Major depressive disorder
  • Bipolar disorder
  • Post-traumatic stress disorder
  • Obsessive-compulsive disorder
  • Schizophrenia

These regulations are intended to shift the focus away from the issue of whether someone is disabled to the issues of prohibited conduct and reasonable accommodations.  What this means practically is that it will be easier to fall into the ADA definition of disabled and the court battles will likely be focused on whether an individual was denied reasonable accommodation.

To assist employers, the EEOC has published on its website a FAQ document as well as a Fact Sheet regarding these regulations.

For more information on the ADA and how it is also interacting with incentive-based corporate wellness programs, be sure to check out Hill, Chesson & Woody’s most recent Eyes on Benefits newsletter.