Wednesday, February 13, 2013

Happy ADEA Day (to me). Now let’s rewrite the age discrimination laws.


I’m a white male, which means I’ve spent my entire life unprotected by the various civil rights laws to which I’ve devoted my career. Yes, I’m Jewish, but the legal profession isn’t known for its mistreatment of Jews. In other words, I’ve been exposed and unprotected for the first 40 years of my life.

All that changes today. Today, I turn 40. Today, I fall under the generous protections of the age discrimination laws.

The thing is, I don’t feel old; I feel young. I have young kids (6 and 4). I still watch cartoons and play video games. Alt Nation is my go-to channel on Sirius. My back only hurts some of the time.

Scientists say 40 is the new 30. If that’s the case, then why does the law protect 40 as age discrimination? If 40 is the new 30, then 50 is the new 40.

Today, to mark the ruby anniversary of my birth, I am starting a movement to change the protections of age discrimination laws from age 40 to age 50. If I can’t get cheap AARP hotel rooms for another 10 years, then I shouldn’t be able to claim age discrimination either. I am willing to give up my newly found protected status for an age cutoff that makes sense.

Now, I’m heading outside to yell at those kids to get off my lawn.

photo credit: Beautification Syndrome via photopin cc

Tuesday, February 12, 2013

BREAKING: FMLA compliance is not as easy as the DOL says [poll results]


In celebration of the FMLA’s 20th anniversary, the Department of Labor released the results of a survey of employers on their experiences managing the statute. According to the DOL, “employers generally find it easy to comply with the law, and … the vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations….”

That conclusion sounded so out of touch with reality that I decided to run my own (not so scientific) poll. I asked one simple question:

How difficult has it been for your company to comply with the FMLA?

200 responded (thanks to Jeff Nowak, the Evil HR Lady, and Robin Shea for the link-love). The results are not pretty for the DOL’s credibility. Not so surprisingly, my poll reached the exact opposite conclusion.

  • Only 9.5 percent of respondents report that the FMLA compliance is very easy or somewhat easy.
  • Conversely, a whopping 68 percent report that FMLA compliance is very difficult or somewhat difficult.

The complete results—

infogr.am

Very difficult

20.5 %

Somewhat difficult

47.5 %

Average difficulty

22.5 %

Somewhat easy

6.5 %

Very easy

3 %

What do these resultsmean? It means that either the DOL found the only sample of employers in the country who have no issues managing FMLA compliance, or the DOL put so much spin on its survey results that its conclusions are not credible. Do I need to tell you that I think it’s the latter?

I am saddened by the DOL’s apparent chicanery. These tactics do not help raise FMLA awareness; they lower the DOL’s credibility. It is no secret that (1) the United States lags behind the rest of world in workplace leave rights; and (2) the FMLA’s mission is noble, albeit one that poses an administrative nightmare for conscientious employers. Surveys that rob the DOL of its credibility in enforcing this statute do not help employers comply with this law. Instead of creating surveys that mislead everyone into thinking that the FMLA is working, the DOL should recognize that FMLA compliance is difficult and put its resources into helping employers meet its complex maze of requirements.

Monday, February 11, 2013

Laughing out the door: half of employees admit to stealing corporate data


Do you worry about the information, data, and other property your employees are taking with them after a resignation or termination? If you believe the results of a recent survey conducted by Symantec, if you’re not worried, you should be.

According to the survey, half of employees who left or lost their jobs in the last 12 months kept confidential corporate data, and 40 percent plan to use it in their new jobs. The results are jarring:

  • 62 percent of employees believe that it is acceptable to transfer work documents to personal computers, tablets, smartphones, or into the cloud, and most never delete the data they’ve moved.
  • 56 percent see nothing wrong with using a competitor’s trade secrets.
  • Given the example of a software developer who develops source code for a company, 44 percent believe the employee has some ownership in the work and inventions.
  • 51 percent think it is acceptable to take corporate data because their company does not strictly enforce policies.

Based on these results, Symantec makes the following three recommendations for companies hoping to shore up their data:

  • Employee education: Organizations need to let their employees know that taking confidential information is wrong. IP theft awareness should be integral to security awareness training.

  • Enforce non-disclosure agreements (NDAs): In almost half of insider theft cases, the organization had IP agreements with the employee, which indicates the existence of a policy alone—without employee comprehension and effective enforcement—is ineffective¹. Include stronger, more specific language in employment agreements and ensure exit interviews include focused conversations around employees' continued responsibility to protect confidential information and return all company information and property (wherever stored). Make sure employees are aware that policy violations will be enforced and that theft of company information will have negative consequences to them and their future employer.

  • Monitoring technology: Implement a data protection policy that monitors inappropriate access and use of IP and automatically notifies employees of violations, which increases security awareness and deters theft.

Of these three, the enforcement of agreements and other legal rights against the theft of confidential information and other corporate data is the most effective. Companies do not like litigation—it’s expensive, time consuming, and uncertain. Yet, when your intellectual and other property is involved, you have no choice. There exists no greater deterrent to copycat misconduct in the future than putting a thief through the legal wringer. Your employees will know that your agreements have teeth and that you will go to mat to enforce them. The hopeful result is that they will think twice about walking out the door with even a promotional pamphlet, keeping your corporate information and other property secure.

Friday, February 8, 2013

WIRTW #260 (the “award season” edition)


It’s award season. The Grammys are this weekend, and the Oscars a few weeks later. About.com is also handing out some awards, albeit a lot less glamorously. The web portal is giving out its Human Resources Readers’ Choice Awards. It is asking people to nominate their favorite HR websites in various categories, including Best Site for HR Legal Information.

The nomination process is open until 11 p.m. EST on February 11. If there is an employment law blog you enjoy reading, its proprietor would appreciate your vote (even if it’s not me).

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, February 7, 2013

Employer Bill of Rights is (finally) available for Kindle


It took a little head bashing of the fine folks at Amazon, but The Employer Bill of Rights is finally available for download onto your Kindle.

If you’re keeping track, the book is available in the following formats:

Thanks to everyone who has purchased so far, and for the kind words I’ve received from those who’ve read the book. Now, on to the best seller list…

Workplace social media policies must account for generational issues


Cisco recently interviewed 3,600 Gen Y College students and workers between the ages of 18 and 30. The purpose of the survey was to gauge the influence of social media, mobile devices, and the Internet on that generation’s job choices. The results (via Gen Y Hub) say a lot about how companies should be managing the divergent expectations of different generations in the workplace.

  • 2 out of every 3 college students will ask a prospective employer about its social media policy during a job interview.
  • If a company bans the access of social media in the workplace, 56 percent either will not accept a job or will ignore the policy.
  • 1 out of every 3 value social media freedom over salary.
  • Approximately 70 percent believe that corporate devices should also be used to access personal social media accounts.

Generational issues might be the most important interpersonal aspect of managing social media in the workplace. Yet, this issue is rarely discussed. Each generation has a very different idea both about the role of technology in their daily lives, and the impact of technology on their concepts of personal privacy. A policy that only recognizes the interests of one generation will chase away the others. Take the time to craft a workplace technology program that properly accounts for the divergent ideas of Boomers, X-ers, and Y-ers.

This post originally appeared on The Legal Workplace Blog.

Wednesday, February 6, 2013

The revolution WILL be televised … Shore up your social media before a termination


Last week, music retailer HMV laid off 190 employees. One of the affected, a former HR employee, hijacked the company's Twitter account and live-tweeted what he described as the “Mass execution, of loyal employees who love the brand. #hmvXFactorFiring ”

HMV Employee Hijacks Company Twitter Account Amid  Mass Execution  Layoffs

In addition to everything else companies have to worry about when terminating employees (lawsuits, sabotage, theft of confidential information, low morale), companies now also have to worry about the maintenance of their public image via social media.

We live in a world in which the walls of privacy are not-so-slowly eroding. Nothing can damage a company’s reputation more quickly than a viral campaign. We no longer have to worry about employees merely discussing the nitty-gritty of a termination. Today, we have to worry about our employees broadcasting it to the entire world in 140 character insta-bursts. And, there’s not much you can do about it after the fact. Once the information is out, it’s out. HMV deleted the tweets, but all it took was one person to “print screen,” and the next thing you know bloggers around the world are republishing the information it tried to hide.

While there is not much you do after the fact, there is one thing you can do before the fact. If you are concerned about employees live-tweeting a termination or a mass layoff, disable their access to your social media channels before you tell them. Change their passwords. Remove their logins. Is there a chance they’ll figure out something is afoot before you officially communicate the termination? Absolutely. Does the harm to your business from that risk pale in comparison to the viral harm you will suffer if said employees hijack your official social media channels? You bet.

Tuesday, February 5, 2013

DOL: Employers find it easy to comply with the FMLA. What?!?! [poll]


Twenty year ago today, President Clinton signed the Family and Medical Leave Act into law. To commemorate this anniversary, the Department of Labor has released the results of a survey of employers on the status of this law.

According to the DOL:

The study shows that employers generally find it easy to comply with the law, and misuse of the FMLA by workers is rare. The vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations such as employee absenteeism, turnover and morale.

Did I read that right? Does the DOL really conclude that “employers generally find it easy to comply with the” FMLA? I started practicing law in 1997; I’ve spent my entire career advising employers on the FMLA. I am not aware of any company that finds it “easy to comply with” the FMLA. In fact, most companies whom I have counseled would tell you that FMLA administration is among the most complicated of all HR functions.

Either the DOL found the only 1,649 employers (91 percent of the 1,812 worksites surveyed) who “find it easy to comply with” the FMLA, the DOL is putting some major spin on its survey results, or my read on FMLA administration is way off.

To find out for sure, I’m running my own poll, which asks the question, How difficult has it been for your company to comply with the FMLA?

[Hat tip: Eric Welter]

Monday, February 4, 2013

How do you fight invisible discrimination?


With what seemed like most of Cleveland's western ‘burbs, I spent part of my Sunday afternoon shopping at Costco. My trip not only included the expected bulk items, but also some unexpected bigotry.

Near the samples of mozzarella and pita grilled cheese (delicious), I crossed paths with a family—a father and his two sons—of what appeared to be Arabic descent . The older of the two boys, around age 10, turned to his dad and said:

I got back at that lady who cut me off;
she looked Jewish.

Needless to say, I was stunned, and decided that I couldn’t let the comment go answered. I quietly told the family that I couldn’t stop them from thinking what they want, but they should be careful when and where they express their feelings. They walked away.

In a decade or two, that boy will join the workforce. He could be one of your employees, or, worse, one your managers or supervisors. How do you root out this kind of hatred before it outs itself out in a harassment complaint or discrimination lawsuit? There is no easy answer to this difficult question. Perhaps all we can do is recognize that everyone carries baggage. Some is harmless, and some is hateful. If we foster a workplace of openness and inclusion, when that hatred exposes itself employees will understand that it belongs to a rogue and not your company ,and hopefully, choose not to hold you accountable (provided you respond quickly and decisively when brought to your attention).

Friday, February 1, 2013

WIRTW #259 (the “luddite” edition)


Mozy recently published a list of the 50 Things We Don’t Do Anymore Because of Technological Advancements. It’s weird to think that my kids will never use an encyclopedia to write a last-minute term paper, scour the ground for payphone change because they forget to leave the house with a trusty dime, or dial *69 to figure out which of their friends is pranking us.

Scanning the list, though, I’m proud to say that I’m still a luddite in some key areas:

  • Print photographs
  • Go into the bank to conduct business
  • Remember phone numbers
  • Watch DVDs
  • Fax documents
  • Have a CD collection
  • Watch TV shows at the time they are shown
  • Try on shoes at the mall
  • Buy flowers at a florist
  • Buy newspapers

By my count, I’m 20 percent luddite. How do you rank?

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

photo credit: Tony Fischer Photography via photopin cc

Thursday, January 31, 2013

What can go wrong when employees date?


Since Valentine’s Day will be fast upon us, I thought I’d take a new look at a popular issue this time of year—the office romance.

Gerald v. University of Puerto Rico (1st Cir. 1/28/13) [pdf] is textbook example of the parade of horribles that can happen when an office romance sours.

During at at out-of-town conference, Dr. Melissa Gerald had a week-long sexual relationship with her supervisor, Dr. Edmundo Kraiselburd. According to Gerald, the affair embarrassed her and she rebuffed Kraiselburd’s pursuits after their return home. Two years passed without incident, after which Gerald alleges three separate incidents of harassment occurred, all within two months of each other: (1) Kraiselburd propositioned Gerald for sex, (2) Kraiselburd grabbed her breast, and (3) Kraiselburd asked her, “What will it take for you to f**k me?”.

The hospital defended against Gerald’s sexual harassment claim by arguing that Gerald often engaged in sexual and off-color banter with Kraiselburd, and therefore invited whatever she received in kind. In reversing the district court’s dismissal of Gerald’s lawsuit, the court of appeals shut down any argument that Gerald had “asked for” the harassment:

We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work. Instead the evidence here was enough, at the very least, to raise a factual question as to whether Kraiselburd’s conduct was unwelcome….

Pointing to the fact that Gerald and Kraiselburd often engaged in off-color banter, the University says the supposed harassment was not severe. We disagree and think a jury could have seen things otherwise. Gerald says Kraiselburd grabbed her breasts, sexually propositioned her, and crassly asked in front of others why she would not have sex with him. The University is not denying these occurrences for summary judgment purposes. These offensive incidents, which involved sexual propositioning and uninvited touching, can reasonably be viewed as severe; and, in the case of the breast grabbing incident, physically threatening (not to mention criminal). Like we have said, it is clear that "behavior like fondling, come-ons, and lewd remarks is often the stuff of hostile work environment claims….”

While this case shows what can go wrong when employees become sexually involved, it is not a reason to ban office romances or trysts. I believe that employees’ business is their business. We expect employees to commit long hours to their jobs, and it is often the case that their only opportunity to socialize is at work. The heart goes where it wants to go, and no workplace rule or policy will stop employees from getting involved with each other.

Instead of banning office romances, companies should reinforce appropriate workplace behavior during harassment avoidance and response training.

  • Tell employees that office romances are not prohibited, but that the company expects professional behavior regardless of the personal relationship (past or present) between employees.
  • Offer examples, such as the Gerald case, of how to not to behave following a break-up.
  • Advise employees that unprofessional behavior following an office relationship is not tolerated, and will lead to discipline, up to and including termination.

Following these simple steps will put you in a position to present the best defense possible to a harassment lawsuit stemming from an office dalliance. It also means that you won’t have to fall back on the “she asked for it” defense, which, as Gerald illustrates, rarely works.

Wednesday, January 30, 2013

Are employers screwing up the FLSA’s lactation mandate? Probably not.


At Business Insurance, Judy Greenwald quotes an attorney who believes that employers are doing an inadequate job of accommodating employees’ lactation requests. The article discusses a recent Freedom of Information Act request, in which the Department of Labor disclosed that it has conducted 54 investigations into claims of inadequate lactation accommodations between the date the Patient Protection and Affordable Care Act took effect, March 23, 2010, and June 11, 2012. Those investigations, in turn, uncovered 36 violations of the law. Based on that data, the article concludes that “the Labor Department is paying attention to and is prepared to enforce” the FLSA’s lactation mandate, and that “employers either are not aware of their obligations, or do not fully understand them.”

I wholeheartedly disagree. A little more than a year ago, I ran a post on this same issue. At that time, I pointed out that the DOL had only cited 23 companies, or 0.023 percent of all companies with 100 or more employees. Now, with an additional six months of data, the number of citations has jumped by 13, from 23 to 36.

By comparison, according to the EEOC’s recently updated charge filing statistics, individuals filed 99,412 separate discrimination charges during fiscal year 2012. In other words, discrimination complaints with the EEOC in the last year outpaced lactation complaints with the DOL in the last two and a quarter years by a factor of 1,841.

What is the reasonable explanation for this small number of lactation-rights complaints? Companies are not denying new moms the right to lactate in the workplace. Anecdotally, I have never come across the issue with a client in my 15+ years of practice, and I know of no colleague who has either. You would think that if this problem exists, someone would have dealt with it.

Nevertheless, if you are on the fence about your obligations under this provision of the Patient Protection and Affordable Care Act, here is what you should know:

  • If you have 50 or more employees, you are required to provide a reasonable break time for an employee to pump breast milk. If you have fewer than 50 employees, you can deny the break time, but only if would pose an undue hardship, which the DOL considers to be a significant difficulty or expense.

  • Employers are not required to compensate nursing mothers for breaks taken to expressing milk. The FLSA’s normal rules that govern unpaid versus paid breaks still apply. Thus, a break should be paid if it lasts 20 minutes or less and falls during an employer’s customary break time.

  • In addition to adequate break time, an employer must also provide an appropriate lactation space. The space doesn’t have to be permanent. Any space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, if the space is shielded from view, free from intrusion from coworkers and the public, and suitable for lactation. The only room that is not appropriate is a bathroom.

If you know of a company that has denied an employee the right to lactate, please either leave a comment below, or tweet me. I would like to know if there is any anecdotal support for the idea that companies are dropping the ball on this issue.

Tuesday, January 29, 2013

But he looked black… Court rebukes EEOC’s use of “race rating” in systemic lawsuit


According to the EEOC’s draft strategic enforcement plan for 2012 – 2016, the agency’s number one enforcement priority is ending systemic discrimination in recruiting and hiring. In EEOC v. Kaplan Higher Learning Edu. Corp. (N.D. Ohio 1/28/13) [pdf], the EEOC challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race. Yesterday, the court dismissed the lawsuit in its entirety, excluding the EEOC’s expert witness and concluding that without that expert, the agency could not prove its case.

To determine the race of a particular applicant considered by Kaplan, the EEOC’s expert witness used “race raters.” It subpoenaed the applicants’ DMV records, and used a panel of five people to determine if the photograph looked  “African-American,” “Asian,” “Hispanic,” “White,” or “Other.” The EEOC’s expert required that four out of the five race raters reach consensus to consider that applicant’s race.

Kaplan challenged that the judgment of these “race raters” was nothing more than guesswork, resulting in inherently unreliable data. In agreeing with Kaplan and dismissing the lawsuit, the court cited at least four different reasons for excluding the EEOC’s expert. It was the last reason, though, that caught my eye:

Plaintiff also presents no evidence that determining race by visual means is generally accepted in the scientific community. In fact, the EEOC itself discourages employers from visually identifying an individual by race and indicates that visual identification is appropriate “only if an employee refuses to self-identify.” … According to the EEOC, it implemented these guidelines not because of the accuracy of visual identification, but to facilitate and respect “individual dignity.” Regardless of the reason supporting the pronouncement, it is clear that the EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is a method accepted by the scientific community as a means of determining race.

In other words, the agency charged with ending racial stereotypes in the workplace based its entire case on stereotypical way in which different races “look.”

If there’s one thing I hate it’s intellectual dishonesty. Whether it’s the EEOC prosecuting a race discrimination case by using “race spotting,” or a Catholic hospital defending a wrongful death suit by arguing that a fetus is not a person because life begins a birth, not conception, intellectual dishonesty is nothing more than the sum of hypocrisy and laziness. I am grateful that we have federal judges in my home district who are willing to call the EEOC on the carpet for this tactic, and I am hopeful that the 6th Circuit will see things the same way when ruling on the inevitable appeal.

Monday, January 28, 2013

Employees, if you don’t want us to get your social media info in discovery, don’t post!


In EEOC v. The Original Honeybaked Ham Co.—a hostile environment sexual harassment brought by the EEOC on behalf of 20 female employees—the federal court compelled the plaintiffs to produce their social media profiles. Donna Ballman, writing at Screw You Guys, I’m Going Home, argues that the court botched this ruling because an order compelling the production of social media information in a sex harassment suit can only lead to an employer arguing that that the plaintiffs “asked for it.” Donna argues:

The big smoking gun the employer pointed to was a shirt one of the women wore in a photo with the word, “Cu**” on it. Apparently, if you wear such a shirt on your own time, no matter your intent, you have extended an open invitation to all your supervisors and male coworkers to sexually harass you. Sort of like the argument that African-American employees who use the n-word can’t be offended when someone else uses it toward them.

Donna’s argument, however, misses the mark. The court did not compel the production of the employees’ social media accounts to bolster a “they asked for it” defense. The court ordered the production because one of the employees “posted on her Facebook account statements that discuss her financial expectations in this lawsuit,” and wrote about “her post-termination employment and income opportunities and financial condition.” She also wrote about other potential causes for any emotional harm (a lost pet), and her positive outlook on life following her termination. Other of the plaintiffs joined in at least some of these posts.

There are two key issues in any case: liability and damages. The court primarily ordered the production of the social media information to permit the employer to build a defense as to the latter. An employee’s financial motivations and emotional well-being are relevant to showing that she has not been harmed to the extent she is claiming, if at all.

Moreover, the court did not compel the free and unfiltered production the employees’ social media accounts. It required an in camera inspection by the court, along with of a forensic special master and detailed questionnaires for each plaintiff to complete concerning their online activities. This case is not an example of a court irresponsibly ordering a prying into plaintiffs’ private lives under the guise of discovery. This court went above and beyond to prevent any unnecessary invasions of privacy while ensuring the employers’ right to gather relevant information.

The bottom line is that social media profiles are a potential treasure trove of information in litigation.  Employees, if you do not want your social media posts to be reviewed in a lawsuit you file, stop posting. Stop writing about your post-termination state of mind. Stop communicating with former co-workers. Stop writing about your lawsuit. And, stop posting photos of yourself wearing a “cu**” t-shirt. If you post, rest assured it will likely be fair game to use against you in the lawsuit you chose to file. As the Honeybaked Ham court reminds us: “If all of this information was contained on pages filed in the “Everything About Me” folder, it would need to be produced. Should the outcome be different because it is on one’s Facebook account?”

Friday, January 25, 2013

WIRTW #258 (the “imitation is the sincerest form of flattery” edition)


This week, the Connecticut General Assembly (hat tip: Dan Schwartz) introduced Proposed House Bill 5236, which would create an “Employer’s Bill of Rights.” Hey, that sounds kind of familiar. Didn’t someone wrote a whole book called The Employer Bill of Rights?

Representative Kupchick, I’m waiting for my licensing fee. I’m sure the check’s in the mail.

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, January 24, 2013

Damn You Auto Correct! (train your employees to proofread)


Do you have employees under the age of 35? If so, the odds are that they communicate with each other with text messages on their mobile devices. If you’ve ever texted, you know the evils of autocorrect. For the uninitiated, autocorrect is a function of today’s smartphones that automatically changes an unrecognized word to its closest match.

Sometimes, these auto-corrects have hilarious results.

Of course, one employee’s hilarious is another’s offensive, which brings us to today’s HR lesson.

When you hold your annual harassment training (you hold annual harassment training, right?) you might want to consider mentioning the evils of autocorrect. You will never succeed in having the Gen-Y’ers and Gen-Z’ers exchange their iDevices for more face-to-face conversations. You may succeed, however, in educating on the importance of proofreading messages before they are sent, which, in turn, could save you the time and expense of an internal harassment investigation, or, worse, defending a lawsuit.

This post originally appeared on The Legal Workplace Blog.

Wednesday, January 23, 2013

How do you spell civil rights? ENDA


Yesterday, the EEOC announced that it has filed a lawsuit against a Charlotte security-services company on behalf of a group of male employees who claim that their same-sex captain and lieutenant sexually harassment them.

This news comes on the heels of President Obama’s Inaugural Address, which The New Yorker calls, “America’s most important gay rights speech.” It was not only what the President said, but also the context in which he said it—on Martin Luther King Day, as part of a larger discussion about the civil rights movement.

Here are the President’s remarks, courtesy of ABC News:

We, the people, declare today that the most evident of truths—that all of us are created equal—is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall….

It is now our generation’s task to carry on what those pioneers began…. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law—for if we are truly created equal, then surely the love we commit to one another must be equal as well.

What does this mean for you, as an employer? It means that President Obama’s second term will likely be the point in history when sexual orientation achieves equality. It means that sometime between now and 2016, the Employment Non-Discrimination Act (ENDA) will become the law of the land, amending Title VII to include sexual orientation and gender identity as protected employment classes on par with race, sex, religion, national origin, disability, and age. It’s about time.

The time is coming when LGBT discrimination will no longer be acceptable. As an employer, you can get ahead of this issue. According to the Human Right Campaign, 88 percent of the Fortune 500 has non-discrimination policies that include sexual orientation, and 57 percent include gender identity. ENDA or not, we should be at 100 percent. It’s appalling that 13 years into the twenty-first century, it is still legal in the United States of America to treat people differently solely because of their inclusion in a marginalized group. Get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.

Tuesday, January 22, 2013

Requests for unpaid medical leaves should be stamped, “Handle With Care”


If I had to rank questions I get from clients in order of frequency, questions on medical leaves would be near, if not at the top of, the list. These questions usually take the form of, “Sally has been out of work on a medical leave for a few weeks (or months), and tells us she needs to be out for a few more. We need to get her work done. Can’t we just replace her and move on?” The easy answer, whether or not you are covered by, or the employee is eligible under, the FMLA, is a big fat “no.”

Regardless of the FMLA, the ADA will require that you consider, and likely grant, an unpaid leave of absence as a reasonable accommodation for a disability. How long is too long? Bimberg v. Elkton-Pigeon-Bay Port Laker Schools (6th Cir. 1/17/12) [pdf] provides some guidance.

Cynthia Bimberg took an unpaid leave of absence from her teaching position to care for her husband, diagnosed with metastasized melanoma. The employer granted her 12 weeks of leave under the FMLA, extended that leave by 6 months until the end of the school year, and again extended it to the one-year anniversary date of her leave. When she then failed to return to work, the school district terminated her employment.

In affirming the decision dismissing Bimberg’s ADA lawsuit, the 6th Circuit commented on the duration of her leave in relation to the legal merits of her discrimination claim:

The alleged factual dispute concerns Bimberg’s insistence that her year of unpaid leave ended on January 4, 2010, not on December 18, 2009. But Bimberg conceded in her deposition testimony that she would not have returned to work in January 2010 in any event, because she could not leave her terminally ill husband in Houston. Indeed, she did not return to Michigan permanently until a week after his death on February 11, 2010….

It is apparent that Cynthia Bimberg was motivated by the hope that Laker Schools would relent and, on humanitarian grounds, allow her to take what, from their point of view, constituted an indefinite leave. The school district’s failure to do so clearly did not constitute a violation of the ADA.

What should you take away from this case?

  • An indefinite leave of absence—one from which neither the employee nor his or her doctor can provide a date upon which the employee can return to performing the essential functions of the position—is per se unreasonable under the ADA.

  • You must consider a finite unpaid leave as an accommodation. Even finite leaves, however, can reach a point that tips the leave from reasonable to unreasonable.

  • If you are granting a leave to an employee as an accommodation, your best defense to a potential ADA claim is to have an open dialogue with the employee about a return date, and prepare to be flexible (to a point). What is reasonable will depend on the nature of your business and how the employee’s position fits into your organization. You cannot make this determination without talking to the employee, gathering medical information, and making an informed decision about what works best for your company. Then, when the employee asks for “one more extension” to his or her leave of absence, no one will fault you as an unreasonable ogre if you decline.

[Photo credit: jenny louise johnson via photopin cc]

Monday, January 21, 2013

Something different for MLK Day


Today is Martin Luther King Jr. Day, celebrating not only the life of Dr. King, but, more importantly, the lessons of inclusion and respect to be learned from his life and untimely death.

In years past, I’ve provided some words of wisdom for employers from this important day:

If you’ll indulge me, I thought I’d try something a little bit different to memorialize this day: humor—both in the SFW and NSWF variety—each with something important to say about race relations in our society.

 

Archie Bunker's historical meeting with Sammy Davis Jr. (SFW)

 

Chris Rock asking, "Can white people say nigger?" (NSWF)

And, if humor’s not your thing, I’ll be back to regularly scheduled programming tomorrow with a post answering the age-old disability discrimination question, “How long is too long for a medical leave of absence?”

Friday, January 18, 2013

WIRTW #257 (the “Lawsuit of the Year?” edition)


JEN_Hyman092012_8-LThe year is young, but we already have a strong candidate for the lawsuit of 2013. Above the Law brings us the story of a teacher who claims that her school failed to accommodate her disability—a fear of children.

Above the Law, quoting the Huffington Post, provides the details:

Waltherr-Willard, 61, claims in her lawsuit against the Mariemont school district that for 35 years, she taught Spanish and French to high school students in the system. But when she helped fight the district’s decision to cut French class in favor of an online course, officials retaliated by reassigning her to younger students at a middle school in 2009, ignoring her hypertension, specific phobia and general anxiety disorder, Waltherr-Willard says, according to Cincinnati.com…

Working with younger children at the middle school “adversely affected [Waltherr-Willard's] health, due to her disability,” the lawsuit claims, according to ABC News.

What’s next? Lance Armstrong suing the International Cycling Union for failing to accommodation his fear of winning without PEDs?

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations