Posts Tagged ‘EEOC’

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.

Background Checks – Three Questions to Consider

Thursday, April 14th, 2011

These days, most employers include background checks as a mandatory part of the hiring process, as they should.  When conducting background checks it is very important that you follow the letter of the law.  Here are three important considerations for your background checking process:

  1. Are you complying with the federal Fair Credit Reporting Act (FCRA)? A lot of companies get derailed on the word “credit” – they feel that since they are not looking at the financial record of their applicant/employee that the FCRA does not apply to them.  In reality, the FCRA actually applies to any sort of background check that is compiled by a third party, such as your background checking company.  It is almost impossible to avoid using a third party in some part of the background check.  Many companies and a lot of universities refer verification inquiries to third party companies that act as the repository, instantly bringing your background check under the purview of the FCRA.
  2. Is your decision point job related? The Equal Employment Opportunity Commission (EEOC) rules are clear—you should only hold items against your applicant that are job related.  If you are unable to show a correlation to the work your applicant needs to do, you are better off not considering the unrelated negative background check results when making your hiring decision.  In fact, the EEOC has said that you must take into accountthe nature and gravity of the offense or offenses for which the applicant was convicted; the time that has passed since the conviction and/or completion of the sentence; and the nature of the job held or sought.
  3. Should you look at financial credit reports? The answer is yes, if it is important to the job requirements of the position for which you are hiring.  Recent actions by legislators and the EEOC should make you take pause before requiring a financial credit report on all applicants.  A good litmus test (unless you are in Hawaii, Oregon, Washington and Illinois) is if the position includes any of the following characteristics:
  1. is a managerial position which involves setting the direction or control of the business;
  2. involves access to customers’, employees’ or the employer’s personal or financial information other than information customarily provided in a retail transaction;
  3. involves a fiduciary responsibility to the employer, including, but not limited to, the authority to issue payments, transfer money or enter into contracts; or
  4. provides an expense account.

CAI works closely with its Background Checking clients to ensure they are fully compliant with local and federal laws.  If you have questions about background checks, please contact Kevin von der Lippe at 919-878-9222 or 336-668-7746.

Photo Source: HaxNetwork

Laws Enforced by the EEOC

Thursday, February 10th, 2011

With recent changes in federal law and regulations, and increased government investigation efforts, employers should be sure that they understand which federal agencies enforce which laws and regulations.

The federal agency that enforces the most employment-related laws and regulations is the Equal Employment Opportunity Commission (EEOC).  The EEOC was created by Title VII of the Civil Rights Act of 1964.  The federal laws affecting the employment relationship enforced by the EEOC are:

  • Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex or national origin.
  • The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.
  • The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older.
  • Title I and Title V of the Americans with Disabilities Act of 1990 (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.
  • Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government.
  • The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.
  • Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral and other aspects of employment.

For additional information about the EEOC, go to www.eeoc.gov.

Photo Source: Mr. T in D.C.

Important Steps to Follow When Hiring Employees

Wednesday, July 21st, 2010

Most companies feel that planning to hire new employees is an obvious indicator to the outside world of their success.  It shows their products and/or services are in such demand that they need a bigger pool of labor to maintain their output or increase it.  But sometimes hiring occurs without the reasons behind it fully being explored. When this happens it can cost your company a lot of money.

You need to keep the following steps in mind to reduce the risk of a bad hire. These are essential concerns when considering opening a position at your organization.

1)     Make sure you know why you need to hire the employee.

You should not be looking for someone just for the sake of filling a job.  Ask yourself these questions:

  • Will this position be needed for your company in the long term, or will its responsibilities change in the future?
  • If this is a new position, do you know why it was created and what its responsibilities entail?
  • Do you know the job duties to be performed by the employee on a daily, weekly, monthly and yearly basis?

If the answer is “No” to any of these, you need to rethink your decision for this new hire.  It may not be worth investing in a full-time or even part-time employee to fulfill what you need upon review. You may be able to achieve what you want with in-house talent or outside contractors.

2)     Know and follow federal and state guidelines for the hiring process.

Do you know the rules for what you can and cannot ask a job candidate during an interview regarding his or her life away from the job?  What about the state and federal forms you need to complete for the person when he or she is hired?  And are you ready to handle an employee who will cite North Carolina labor laws when questioning you about your policies?

Companies with full-sized HR departments know the answers to these questions, but even medium-sized ones often do not.  This ignorance can not only discourage good workers from joining your company, it can result in a lawsuit for you because you did not follow these laws or EEOC guidelines.

3)     Establish exactly what you want from a candidate in the available position.

You should have a definite idea about what minimal educational background and experience you want for someone to assume the role.  The same should apply to the salary and benefits you are offering – if the applicant wants more, how far are you willing to bend to meet the request without hurting the company? You should also know what kind of personality will fit well with your company’s culture, and what kind will not.  Assessments can be very useful in helping determine whether a job candidate is a good fit for your organization.

While it does help to have recommendations from your social network for a new employee, it should not be the sole determining factor in hiring the person.  Check the applicant’s references to get a sense of how he or she performed in previous positions. Also, background checks are a must for any employer that is hiring these days.

No one can guarantee that these steps will prevent a bad hire for a company. But by judiciously applying them, you will be greatly increasing the likelihood of finding an appropriate candidate for your job.

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

Photo Source: Schzmo

Seven Things N.C. Employers Need to Know about EEOC Charges

Wednesday, July 7th, 2010

Recently, CAI members had the opportunity to learn more about Equal Employment Opportunity Commission (EEOC) charges during our Ask the Expert programs.  The EEOC enforces Title VII, which prohibits discrimination or harassment based on age, disability, genetics, national origin, pregnancy, race/color, religion, or sex.  Title VII also protects employees from retaliation for complaining about discrimination or participating in an investigation.

EEOC officials Thomas Colclough, Jose Rosenberg and Tina Burnside took questions from the audience and provided insight on the EEOC investigative process. Some of the key points from the presentations include:

1. Categories of Charges. The EEOC prioritizes charges as category A (charges that fall within the national or local enforcement plan, or other charges that will likely result in a cause finding), category B (charges that require additional information to determine the merit of the charge) or category C (charges suitable for dismissal).

2. Employer Notice. If a charge is filed against an employer, the employer will receive a Notice of Charge form from the EEOC within 10 days.  The Notice of Charge will include the name of the employee making the charge, the nature of the charge, what action is required by the employer and the date that a response is required.

3. Mediation Option. Mediation is free and conducted by EEOC mediators or contracted mediators, and the parties (employer and employee) decide on the course of action (facilitated by mediators).  There is no decision on “fault.”  The mediator drafts an agreement based on the negotiated settlement by the parties, and all parties sign the agreement, which is binding.  Unsuccessful mediation will result in the charge going back into the investigation process.  Category A charges are not eligible for mediation.

4. Investigation Process. The investigation process may include a request for a Position Statement, Request for Information (RFI), a Fact-Finding Conference, witness interviews, document review, on-site investigation, predetermination settlement discussions (if EEOC finds fault by the employer), and/or subpoena.

5. Position Statement.  Employers are normally given 30 days from the date the Notice of Charge is mailed to respond to the EEOC with a Position Statement.  The Position Statement is one of the most critical documents the employer submits to the EEOC.  Employers should spend time developing the Position Statement to answer each issue raised by the charging party.

6. Conciliation. If the EEOC determines there was merit to the charge after the completion of the investigation, a Letter of Determination will be issued to the parties to invite them to participate in conciliation.  The settlement may include damages such as back pay, front pay, hiring, reinstatement, promotion, reasonable accommodation, attorney’s fees, and non-monetary relief like training, as well as a provision not to discriminate.  The conciliation agreement includes a provision prohibiting the charging party from disclosing details about the settlement.  These agreements are binding and enforceable in court.

7. Settlement. Settlement of the charge may be made at various points in the process.  If settled after a lawsuit is filed, the settlement is not confidential.  In this case, the EEOC settles by Consent Decree, and the court monitors the agreement for three years.

Photo Source: tjshirey