Mother-Friendly Employers

While driving home I heard a radio commercial advertising Mother-Friendly Employers here in Texas.  We've come a long way.  Who would have thought that companies would advertise their support of breastfeeding in the workplace?  Or that a work-site might obtain "Mother-Friendly" designation?

The Texas House of Representatives passed HB 741 in early May.  HB 741 requires public employers, school districts, cities, counties and state agencies, to accommodate employees who need to express breast milk at the work place.  Under current law, working mothers who are hourly employees have federal protections in place for when they need to express milk in the workplace.  (The Federal Health Care Reform Bill, signed in March 2010, contained an amendment to the FLSA requiring employers to give breaks for nursing.)  However, salaried employees have no protections in state or federal law.  House Bill 741 seeks to close this loophole.

Employee Absenteeism

When I mention measuring employee absenteeism the first thing that comes to your mind is firing employees because they missed too many days at work.  Right?  Well, maybe it shouldn't.  You can measure absenteeism for many purposes including workforce planning, lost wages and reduced productivity.  But can you also use it to measure employee morale?

Employee absenteeism is a major concern for employers.  Yes, there is oftentimes a sense of entitlement in the workplace that it's okay to be absent.   And where there is an excessive pattern, or a trend in the days the employee is absent, then it is time to take action. But, we also need to acknowledge that people get sick.  In those situations where you perceive a pattern of excessive absenteeism is developing, I highly recommend a discussion with the employee in order to determine if there is a potential FMLA, ADA issue to be addressed.

Absenteeism can be due to a variety of reasons.  If an employee is stressed about their workload, this may manifest itself through absenteeism.  Stress with the job routine and/or job satisfaction, the environment (cold, hot, noise) even with management (style, personality traits).  If stress is a factor, you need to discuss strategies to resolve the stressor.  If one employee is experiencing stress, perhaps others are as well.  We all have more to do and less time to do it in today's business environment.

In those instances where there appears to be an unacceptable level of absenteeism:

1. Meet with the employee.
2. Express your concern.
3. Provide the employee with an opportunity to explain themselves.

Some random statistics for you:

According to a 2012 global workforce survey, "highly engaged employees have lower 'presenteeism' (lost productivity at work) and less absenteeism than disengaged employees. The former lose an average of 7.6 days per year to presenteeism, compared with an average 14.1 days for the disengaged employees....

According to a 2010 Metlife report, "employees with eldercare responsibilities were more likely to report missed days of work. This was driven by the much higher absenteeism among younger caregiving employees, ages 18 to 39. Overall, 9% of non-caregivers missed at least one day of work over the past...

According to a 2009 survey by the National Alliance for Caregiving, "over seven in ten caregivers were employed at some time when they were caregiving (73%). Among them, two-thirds (66%) have gone in late, left early, or taken time off during the day to deal with caregiving issues (66%). One in five...

The Importance of Training Managers

What is the cost to an employer when a manager doesn't recognize s/he is acting in a discriminatory manner?   Some managers don't seem to understand what discrimination means, or oftentimes how to recognize it.  Discrimination, and the cost of discrimination, is a problem that companies just can't ignore.

In an EEOC Press release of 1/23/2013 the Dallas-based Fries Restaurant Management will pay a former employee $25,000 to settle a religious discrimination lawsuit.  The employee, Ashanti McShan, is a member of the Christian Pentecostal Church which requires women to wear either skirts or dresses.  During the interview process with Burger King, Ashanti requested a religious accommodation to wear a black skirt versus the black uniform pants.  She was told by the interviewing manager that her accommodation would be granted.  However, during her orientation the store manager advised her she could not wear a skirt and had to leave the store.  McShan attempted to contact higher management, and was unable to speak with anyone.  She was later discharged as a result of the accommodation denial.   Title VII of the Civil Rights Act of 1964 prohibits religious discrimination.  It requires employers to make reasonable accommodation as long as such does not pose an undue hardship on the organization.   

Florida Courts:  In Hurley v. Kent of Naples, on or about 2005, Patrick Hurley was diagnosed with depression and related mental health symptoms.  The doctor who provided the diagnosis, and the therapist, both advised that he should take medical leave.   The employee advised the company senior officer that he had been diagnosed with depression and needed time off to deal with it.  Having accumulated several weeks of vacation, the employee requested to take most of the year off on vacation.   His request was denied and he was terminated.  Obviously an FMLA suit, alleging interference with FMLA rights and retaliation, followed and Hurley won.  (FMLA entitles eligible employees to take unpaid, job-protected leave for certain family and medical reasons.)    The estimated judgement:

• $200,000 for actual monetary losses
• $353,901.85 for front pay
• $200,000 liquidated damages
• $233,109.75 for attorneys' fees
• $21,329.36 for "costs."

Texas courts: In an EEOC press release of December 18, 2012, Dillard's will pay $2 million to settle a class action disability discrimination lawsuit. Dillard's Inc, enforced a maximum-leave policy limiting the amount of health-related leave an employee could take. Additionally, since 2005, Dillard's had a national policy and practice that required employees to disclose the exact nature of their medical conditions to be approved for sick leave. Further, Dillard's terminated a class of employees nationwide for taking sick leave beyond the maximum amount of time allowed. This policy violated the ADA which prohibits employers from making inquiries into the disabilities of employee's unless it is job-related and necessary for the conduct of business.  The second violation was that managers/supervisors (or even HR) did not regularly engage in an interactive process with employees to determine if more leave was allowed under the ADA as an accommodation.  (More information is available on the EEOC website.)  While you can't blame the managers for this company-wide form of discrimination, logically HR should have identified the violation and pushed for policy reform.  But, who's to say that they didn't?

When discharging an employee who just revealed the need to take time off for a medical condition, use caution. Make sure the discharge reason is unrelated to the request.  Remember, firing an employee who is pregnant has legal risk.  Firing an employee because she is pregnant is illegal.

Employers can take steps to prevent discrimination claims by ensuring that all managers are properly trained.  Please invest in training your managers. 

"The best way to begin is to begin." 
                        - Benjamin Franklin.

2013 Top EEOC Enforcement Topics

2013 is here and so are new challenges for employers!  Via HR Alert, below is a list of the top 5 EEOC enforcement topics for 2013. 

 

1. Strict leave policies and ADA.  To avoid EEOC attention, ensure that you are providing proper reasonable accommodations to disabled individuals.  Also under the EEOC microscope will be leave policies like no-fault attendance, fixed-leave and 100% healed (policies requiring an employee to be fully healthy before returning to work.)
2. LGBT Issues:  EEOC will be looking for signs of discrimination against lesbian, gay, bisexual and transgender individuals.  In April 2012 the EEOC issued a precedent-setting case, Macy v. Holder, that interpreted existing laws prohibiting discrimination on the basis of sex to also prohibit discrimination on the basis of gender identity and sex stereotyping (believing a man must be masculine and a woman feminine, for example).   EEOC determined that transgender employees are covered under Title VII.
3. Leave Policies for Pregnant Workers.   Review your leave policies to ensure they don't open the door to discrimination against pregnant workers.
4. Litigation of national and regional class-action cases.  Employers can expect to see a continued emphasis on company wide investigations. 
5. Use of background checks in hiring process.  In April the EEOC released its guidance on the use of arrest and conviction records in employment decisions.  If you need a refresher, refer back to my June 6, 2012 blog for the enforcement guidelines.   As an employer you need to ensure you understand the differences between arrest and conviction records and how, in some instances, the use of an individuals criminal history in making an employment decision may violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.

Happy Thursday everyone!

Is Workplace Stress a Modern Epidemic?

Remember when 5PM meant the end of a workday?    As a result of  factors such as the economy, job insecurity, or even employer demands, employees remain tethered to work 24/7 through their iphones or Blackberrys.   Face it, we're plugged in and the technology makes us accountable for every moment of our day (just a thought, but working 24/7 shouldn't be a badge of honor).   Let's stop pretending that employees, or you, don't have lives outside of the office and consider how these nonstandard work schedules impact the modern employee and family.
 

Stress is a built-in condition and we're hardwired for it.  In the workplace, those stressors can come from multiple areas or just one.  Workload, lack of appreciation, isolation, conflict, mistrust, lack of direction or just pervasive uncertainty.   When those stressors in your life are always present, it impacts both physical and emotional health. 

Research statistics provided by Statistic Brain in April 2012 (source: American Psychological Association, American Institute of Stress) gave employers an insight into the Top Causes of Stress in the U.S.  The #1 cause of job stress in the U.S. is Job Pressure with contributing factors such as co-worker tension, bosses, and work overload.  

• 77% of the respondents indicated that they regularly experience physical symptoms caused by stress.
• 73% regularly experience psychological symptoms caused by stress.
• 48% feel their stress level has increased over the past five years.

 Additional statistics relating to the impact of stress:

• 48% of respondents say stress has a negative impact on their personal and professional life.
• 31% have difficulty managing work and family responsibilities.
• 30% say they are "always" or "often" under stress at work.

Let's talk about stress's nasty side affects.  Physical symptoms reported by respondents as a result of stress:

• 51% experienced fatigue
• 44% headache
• 34% upset stomach
• 30% muscle tension.

with reported Psychological Symptoms:

• 50% irritability or anger,
• 45% feeling nervous
• 45% lack of energy
• 35% feeling as though they could cry.

Annual costs to employers in stress related health care and missed work?  $300 Billion.

If you want to disregard all of the statistics above, the CDC released their own set of statistics regarding Prescription Anti-Anxiety Drug Use in the U.S. for the period 1988 - 2008.  Think the workforce isn't stressed?  The results by CDC reflected a steady increase in the use of prescription anti-anxiety drugs.  Use by adult women increased from 4% to 5.70% between 2002 - 2008.   Adult population use in 1994 was 2.8%, by 2008 there was an increase to 4.50%.

Let's all take a vacation!  Who's with me?

http://www.statisticbrain.com/stress-statistics/

Nepotism - It's All Relative

"Nepotism is favoritism granted to relatives regardless of merit."   

 

You have to wonder in what world a business owner / executive would think that an organization is best-served in hiring relatives "regardless of merit."   

 

For an employer, there may be a perceived benefit to hiring family members.   You're helping the family member out, becoming a bit of a hero in the process, while potentially saving the costs of recruiting, training, background investigations, etc.  for a new employee.    However, there may be disasters looming right around the next corner.

 

While family members may create a readily available workforce oftentimes they are under qualified for the positions they fill.   And those employees who are bypassed in favor of family members may develop hostile feelings, feelings of resentment.  Nepotism in a business environment may create a perceived lack of fairness in the organization, a disastrous negative impact in which employees may see no career growth. 

 

What about employees who are responsible for supervising family members?  Disciplining or firing employees is difficult enough but will they be restricted in what corrective actions they may take?  Will there be repercussions in taking corrective actions?  Will it cost the employee their career?  How does an employee handle the situation when it's the bosses relative?  Whether or not the owner wishes to admit it, nepotism can be a disruption to the work environment. 

 

Can engaging in nepotism be illegal?  Ordinarily, no.  However,  if the employer hires family (or friends) to the point where there is no consideration for other sexes, age groups, etc, the employer may be unknowingly violating Title VII of the Civil Rights Act of 1964. 

Business owners - here are a couple of questions for you to ponder:

1. Is nepotism unethical?
2. Should nepotism be in the Code of Conduct?

The Obesity Epidemic

The Economic Impacts of Obesity in the Workplace.  Quite a title isn't it?   A 2010 article, it's currently making the rounds via HR Benefits Alert and other HR advisories.  The article cites medical costs, productivity costs, transportation  costs and human capital costs as areas of potential economic impact.

In that same year, 2010, the CDC released it's findings that in 2009 - 2010, 35.7% of U.S. adults were obese. That's 78 million U.S. adults (41 million women and more than 37 million men over the age of 20).  Prior to those findings, in 2009 the CDC launched a website called "LEANworks" as part of a campaign to work with employers to reduce workplace obesity. (LEAN = Leading Employees to Activity and Nutrition.) The website provides an obesity cost calculator for the employer. Using data provided by either the benefits personnel or human resources, the calculator allows an employer to estimate obesity related costs.  Shocked?  In Japan, companies use BMI (body mass index) as an evaluation tool for employment and dismissal.

The CDC released a report in which they indicated that an estimated 42% of Americans will be obese by the year 2030.  According to the American Health Association, if current trends in the growth of obesity continue, total health care costs attributable to obesity could reach $861 to $957 billion by 2030.  That would account for 16% to 18% of U.S. health expenditures.

Statistics or studies, fact or fiction, there's a tremendous amount of information out there that deals with obesity.  Yes, obesity is a concern.  But what about the human cost? Obesity exacts a tremendous price on overweight individuals. Chronic health problems. Psychological suffering.

There has long been the belief that poverty and obesity go hand in hand.  There's no doubt that we need to make healthier choices.  But sometimes that's easier said than done (as my mother would say).   A family on a reduced/limited income has tough choices to make.  They can feed a family of 4 at McDonald's for a lot less than it takes to buy the ingredients to fix a nutritious meal for those same 4 family members.

Is the rising tide of obesity linked to rising food prices?  Basically, one of the primary reasons that lower-income people are more over-weight is because the unhealthiest and most fattening foods are the cheapest.  Between 1985 and 2000, the inflation-adjusted prices of fruits and vegetables increased by an average of 40%.  The price of soft drinks fell by almost 25% during the same time period.  (The American Journal of Clinical Nutrition recently reported that $1 can buy either 1200 calories of potato chips, 250 calories of vegetables or 170 calories of fresh fruit.) 

Obesity is a concern.  And yes, there may be an economic impact to your workplace.   From the Human Resources angle, what about weight discrimination or bias?

Weight discrimination is largely ignored, but it is a serious issue.  The Citizens Medical Center in Victoria, Texas recently instituted a new policy.  This new policy requires that an employee's physique "should fit with a representational image or specific mental projection of the job of a health care professional."   I'm sorry - what?The medical center will require new employees to have a  body mass index of less than 35. 

This policy may cause outrage, but whether or not it's legal remains to be determined. The hospital is going to have to establish job related reasons for excluding employee candidates with a body mass index above 35.  And, how is the hospital going to actually determine the candidates body mass index? 

Weight discrimination is one of the last types of bias that is, for the most part, legal.  Michigan is the only state with laws on the books prohibiting weight discrimination. 

For those that are interested, a Gallup-Healthways Well-Being Index Report indicated that the national obesity rate dropped to 26.1 percent in 2011 from 26.6 the prior year.  A slight drop, but a drop nonetheless.  In this same report, Gallup identified the most and least 5 obese states in the U.S.  For the second year in a row, Colorado had the lowest obesity rate at 18.5% (the only state below 20%).  West Virginia had the highest obesity rate since 2008, at 35.3 percent.  Texas didn't show up on the report.  So, I guess we're doing alright!

The 10 Most Common Legal Mistakes HR Makes

Business Management Daily recently ran this great article outlining common legal mistakes that "HR makes."  Well, those mistakes can be made by any employer, supervisor, and/or business leader out there.  Not just "HR."  While a lot of this is just plain common sense, we all get busy from time to time and make a mistake. 

 #1: Advertisements, Interviews, and Offer Letters

Mistake: improper language in job advertisements. Too many employers still use inappropriate terms — such as "girl," "boy," or "young" — in their job advertisements. This is particularly true when managers, rather than HR, write the ads.

Mistake: unlawful interview inquiries. Too many hiring managers ask about personal and/or protected characteristics during job interviews, which sets the employer up for a discrimination lawsuit if the applicant is not hired.

Mistake: inaccurate description of the job. Some hiring managers work so hard to get top-notch recruits in the door that they fail to be realistic with their description of the job. The unhappy employee will leave, and it will have been a shameful waste of the employer's time and money.

Mistake: inadvertent creation of contractual promises. Too many employers include language in their job offer letters that inadvertently creates an employment contract. For instance, mentioning a yearly salary implies a yearly contract.

#2: Wage and Hour Issues

Mistake: misclassification of workers. Exempt vs. non-exempt status: Finding and correcting these mistakes are an Obama administration priority. While there are many factors to consider, you're basically basing your determination on the employee's level of responsibility and/or training, and a salary test.

Mistake: mandating confidentiality of wage information. Prohibiting employees from discussing their wages is a violation of the National Labor Relations Act.

#3: Privacy Assumptions and Violations

Mistake: permitting an expectation of electronic privacy. Too many employers fail to advise employees to expect no privacy on their computers. If you asked employees, "Do you think the stuff you put into that computer is private?" you might get some interesting answers.

Mistake: improper electronic monitoring. Some states have statutes that require employers to give employees notice if they are being monitored electronically.

Mistake: inadvertently revealing private employee information. HR possesses a great deal of sensitive information about individual employees. It is your duty to keep that information confidential.

#4: Training and Performance

Mistake: failure to train supervisors. When supervisors are not trained, they're the ones who get you into trouble. They may say rude, racist, or sexist things, or be unintentionally discriminatory, and because they are in a supervisory position, the entire company is on the hook.

Mistake: misleading performance evaluations. If you try to discipline an employee for a performance/behavior problem that was never noted on their evaluation, your hands may be tied.

#5: Rough Beginnings and Sharp Endings

Mistake: sloppy start. Among HR's common errors in this area are: failing to submit the state notice of a new hire; failing to tell the employee the key terms and conditions of employment; and providing the employee with a misleading description of working conditions.

Mistake: sloppy finish. Regardless of whether a termination is voluntary or involuntary, always allow the employee to leave with dignity.

#6: Investigations

Mistake: failure to oversee supervisory investigations. As an HR professional, you know that timeliness and thoroughness are important in an investigation. But what about when a supervisor is the one investigating, not HR? It's still HR's responsibility to provide oversight.

#7: Record-Keeping/I-9 Issues

Mistake: failure to document past practices. Courts love to know not only whether the treatment of an employee was against the law or company policy, but whether it was in line with past practices.

Mistake: failure to comply with Form I-9 requirements. Failure to complete the I-9 form properly and failure to keep the form in a separate file are common mistakes employers make.

#8: Breakdowns In Communication

Mistake: failure to keep employees in the loop. Forgetting to notify employees about policy/procedure changes, outcomes of investigations/discipline issues, or unsatisfactory behavior or work quality can be a costly slip-up.

#9: Accommodations

Mistake: failure to explore accommodations. "Accommodation" can be defined as "a determination in favor of the employee." Employers should explore accommodation options when an employee: has a disability, is pregnant, is called to active military duty or has a family member called to active military duty, or wants to engage in a religious observance/practice.

#10: Non-Compete Agreements

Mistake: unreasonable scope. Obviously, an agreement prohibiting an employee from working at any position in the same general industry forever and ever isn't going to hold water.

Mistake: lack of consideration. Legally, contracts are valid only if both sides give something. If the employee gives up their right to compete, the employer must also give something. Too often, the employer gives nothing, making the non-compete agreement invalid in a court of law.

Job Descriptions

Each of you have heard me "rant and rave"  about how important job descriptions are.  I recently ran across a great article that outlines some very important reasons why job descriptions are so important.  In the spirit of sharing:

1.  ADA:  If an employee files an ADA lawsuit, courts will review what the organization has identified as the job's "essential functions" to see if the charges have merit.  Absent a written job description, the court may decide for itself which functions are essential.

2.  Titles carry a great deal of weight in the workplace and in court.  Each position's title should match the level of authority and responsibility. Cross-check it against other titles in the organization.  For example, your "administrative assistant" would be doing most of the same tasks as others with that title.  Don't upgrade employees by giving them inflated titles.  You may regret that when they ask for pay raises or refuse to perform tasks that they consider beneath them.  More importantly, inappropriate titles also factor into discrimination charges.  For example, if your "director of distribution" is really a shipping clerk, be prepared to explain why s/he isn't being paid the same as other "directors."

3.  Essential functions/qualifications:  The key part of JD's is an item-by-item list of the job's duties and responsibilities.  It is important to identify which are "essential" job functions are critical to the job's successful performance.  One KEY legal reason?  Employees can file ADA lawsuits only if they can prove they're legally disabled and can still perform the "essential functions" of the job.  If those "essential" duties aren't detailed in the job description, they're left open to a court's random interpretation.

4.  Results Expected:  Duties are half the equation.  Include expectations relating to deadlines, customer service and company success.  Linking responsibilities to company goals helps the employee see how the position fits into the "big picture."

5.  Use Specific and Clear Language:  Instead of a term like "good communication skills," say the person needs "the ability to communicate company policies to non-managerial groups in person and in writing."

6.  Avoid gender-based language, such as "salesman."

 7.  The bottom line:  Never assume employees know what's expected of them.  Put it in writing and make sure they understand.

Sensitive Information and Security

I don't like to point fingers.  I really don't.  But in this particular situation, I feel that a bit of awareness is needed.

I’m sure you have, at least once in your life, had a drug screen.   We all have.  It's generally a part of any employee's pre-screening process.  During a drug screen a Chain of Custody form is used.  This form reflects the name of the individual being tested as well as their Social Security Number which is used as an identifier. The Chain of Custody Form has been given a status as a legal document for it has the ability to invalidate a specimen that has been tampered with and does not have complete information written on it.  The key words here are “legal document.”  Based on the information reflected on the COC, the form should be monitored to ensure the security of the information provided on the form. 

For the past year, Excel Urgent Care has been our drug screen program vendor.   To protect the integrity of the information reflected on the COC forms, and due to the lack of a secure fax line in my area, Excel has been instructed to mail the employer section of the COC to me.  *I don't like the idea of the COC, with such sensitive information on it, just sitting in a fax box.*

Last week I received a large envelope that contained approximately 35 employer copies of the COC form.  The problem?  Not one of the COC forms in the envelope represented an employee here at Company T.  This sensitive information had been disclosed to a third party, me.   That afternoon  I made a trip to Excel to return the documents and have a brief discussion with the office staff impressing upon them the seriousness of the situation and how critical it is to ensure that this information is protected.    If I’m receiving information on third parties, where, potentially, is my information going?

Yesterday, I received another envelope from Excel Urgent Care.  It was addressed to “Child Protective Service” but mailed to my office address.  The information contained related to a CPS Investigation and a pending divorce.  Not only were the COC forms enclosed, but other sensitive information as well.  The receipt of this information necessitated a second trip to Excel.  However, this time I was able to meet with the manager to express my concern.  She was not aware of the first incident but promised to take the necessary steps to ensure that this type of error did not reoccur.  Without the words being uttered, she understood the potential legal risk associated with the disclosure of this information.

Let's keep our fingers crossed shall we?

In Closing:  Training is critical to ensure that employees protect and treat this sensitive information like a controlled substance.

Flexible Work Arrangements - Where Are They Now?

In 2010 President Obama said making workplace rules flexible “isn’t” only a women’s issue.  "We know that companies with flexible work arrangements can actually have lower turnover and absenteeism and higher productivity," Obama told guests at a dinner for Fortune magazine's Most Powerful Women conference in 2010.  "This is not just a women's issue, or just a work-family balance issue.  It's an economic competitiveness issue."  The Obama administration is clearly on record as promoting flexibility.

Where are we now?

On February 29, 2012 Rep. Carolyn Maloney (D-NY) and Sen. Bob Casey (D-PA) reintroduced the Working Families Flexibility Act (H.R. 4106, S. 2142), a bill that would provide employees with a statutory right to request flexible work terms and conditions.

This new legislation would authorize an employee to request from an employer a change in the terms or conditions of the employee’s employment.  To be eligible, the employee would have to work an average of at least 20 hours per week or a minimum of 1,000 hours per year.  This new bill would only apply to employers with more than 15 employees.

Under the proposed bill, a flexible work arrangement request from the employee must relate to: (1) the number of hours the employee is required to work; (2) the times when the employee is required to work or be on call for work; (3) where the employee is required to work; or (4) the amount of notification the employee receives of work schedule assignments.

Upon receiving a request, an employer would be required to hold a meeting with the employee to discuss his or her application and provide a written decision regarding the application “within a reasonable period” after the meeting. If the application is rejected, the employer would be required to provide a reason for the denial. The employer would be permitted to propose an alternative change to the employee’s hours, times, place, and amount of notification of schedule assignments. If the employee is dissatisfied with this proposal and has another supervisor, the employee would have the right to have the other supervisor reconsider the alternate schedule.

Do flexible work arrangements work?

In 2006 the city of Houston promoted flextime as a way to ease the notoriously congested highways.  The "Flex in the City" program was successful.  It slashed workers' stress, boosting their performance and saving money.   The August 2010 Analysis of Alternative Work Schedules issued by the Texas Comptroller of Public Accounts stated that "AWS benefits retention efforts more than budgets.  Survey responses indicate that while some entities have seen savings from AWS, employee retention and satisfaction are the most common benefits.  AWS should be considered primarily as a means to recruit and retain employees."

Yes, there are challenges to Flexible Work Arrangements.  They may not work in some industries/companies.  But there are benefits.

Maternity Leave and Employer Requirements

There are no federal laws requiring a company to provide paid maternity leave. However, most employers are required to comply with FMLA as well as the Pregnancy Discrimination Act (PDA). If complications rise in the pregnancy that substantially “limit a major life activity,” the employer may need to review the Americans with Disabilities Act" as well.

Under the PDA, employers subject to Title VII of the Civil Rights Act of 1965 are prohibited from discriminating against employees and applicants on the basis of “pregnancy, childbirth and related medical conditions.” (Employers who have 15 or more employees are subject to Title VII of the Civil Rights Act.) Under the law, an employer must treat a pregnant employee like any other employee on the basis of their ability, or inability, to do their job.

As an employer, you must provide the same accommodations for an expectant employee that you would for any employee unable to perform their regular duty. Under the PDA, you are required to provide sick leave and disability benefits on the same basis or conditions that apply to other employees who are granted leave for a temporary disability. Women who take maternity leave must be reinstated under the same conditions as employees returning from disability leave. Remember, consistency in your practices is the key.

Let’s talk FMLA. When an employee becomes pregnant, and if the employee is eligible for FMLA leave, the employer must also consider the employees right to take leave under FMLA.

How about ADA and reasonable accommodation? A normal pregnancy is not considered a disability under the ADA. But if the woman experiences pregnancy complications that substantially limit a major life activity, she may be considered disabled under ADA. If so, the employee is entitled to reasonable accommodation to perform her job.

As always, check your respective state laws.

Keep communicating people.

ADA and Mini-Horses NEWS FLASH

Back in July, 2011 I blogged about mini-horses as service animals. Some of you questioned my sanity - just a bit.

This evening a story hit MSNBC. A California man is suing GameStop and Marshalls for refusing to allow him into their stores with his service animal. Jose Estrada, who is a paraplegic, has a 29-inch tall miniature horse named Princess who pulls him in his wheelchair. Estrada says that employees at the stores should have known that mini horses can indeed be service animals.

"Princess has been individually trained and certified by a professional trainer to assist him by pulling him in his wheelchair," the complaint against GameStop states. "The training further consists of behavior modification, leading and heeling, turning on forehand and haunches, sidepassing, laying down on command, standing still, entering a handicapped-accessible van and confined spaces and desensitization."

Jose Estrada has been professionally trained to control Princess and can do so without difficulty. And, Princess is housebroken. "Her presence in defendants' facility does not compromise the legitimate safety requirements that are necessary for its safe operations."

He is asking for $4,000 in damages from each business.

EEOC: No Diploma Necessary (New Guidance)

The informal discussion letter that the EEOC issued in November 2011 raised a lot of questions and concerns. The EEOC (finally) released some additional guidance on when an employer may POTENTIALLY violate the ADA by requiring employee candidates to have a high school diploma.

According to the EEOC, "[t]here have been significant commentary and conjecture about the meaning and scope of the letter." To clarify the legality of requiring a high school diploma under the ADA, the EEOC has posted a series of questions and answers on its website. The EEOC explains that employers may continue to have the high school diploma requirements. However, the employer may have to allow candidates claiming to have a learning disability to "demonstrate qualification for the job in some other way." The EEOC further states that the employer is still permitted to hire the most qualified person for the job and does not have to give preference to an individual with the disability over someone who can perform the job better.

EEOC Update: No Diploma Necessary

On December 2, 2011 the EEOC posted a letter on their website stating that under the ADA, an employer’s requirement that an applicant have a high school diploma must be job related and consistent with business necessity.

What?

The letter states: “ . . . . if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process. If the individual can perform the job’s essential functions, with or without a reasonable accommodation, despite the inability to meet the standard, the employer may not use the high school diploma requirement to exclude the applicant. However, the employer is not required to prefer the applicant with a learning disability over other applicants who are better qualified.

We hope this information is helpful. This letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.”

The concept here is that the students inability to graduate from high school may be a symptom of a learning disability. Let’s be realistic. Isn’t this an insult to individuals with true learning disabilities? Are we sending a message that you don’t have to stay in school to get a job? That a high school dropout has an entitlement to my job, or your job?

As an employer, do you feel that than increase in EEOC claims against employers will occur? Will there be unfortunate repercussions? Even though the letter does not constitute an official opinion, it raises some concerns for me. A long standard criteria for screening many employees is the high school diploma. Can I say “high school diploma preferred?” Please?

For students, where is the incentive to go to school? To get a higher education? Will this create an educational backlash by creating a diminished incentive for some high school students to finish school?

A comment I read “So if we carry this to its logical conclusion, hospitals will have no right to require doctors to be board-certified or have graduated from an accredited med school.” Hey, I didn’t have the grades to make it to medical school. I didn’t have the mental “capability.” I always wanted to play doctor!

To read the full letter, here’s the link:
http://www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html

Telework/Remote Employees - Undressed for Success

During an interview recently I had a candidate propose working remotely from another state. As we discussed remote employment, the candidate mentioned that he had done some research on remote employment statistics. His findings? Remote employees were often more productive that in-house employees. *hum?* Before I weigh in on that statement let’s talk about telework and remote employees.

According to the 2011 SHRM employee benefits report, "63% of organizations offered some form of telecommuting: 45% of respondents reported that their organizations offered telecommuting on an ad-hoc basis, 34% on a part-time basis and 20% on a full-time basis.”

Statistics from “The State of Telework in the U.S.,” June 2011, by Kate Lister & Tom Harnish indicated that regular telecommuting grew by 61% between 2005 and 2009. While current statistics aren’t available for 2010, I’m reasonably sure that there has been continued growth. Some additional findings from this report:

• Seventy-six percent of telecommuters work for private sector companies, down from 81% in 2005 – the difference is largely attributable to increase WAH among state and federal workers.
• Over 75% of employees who work from home earn over $65,000 per year, putting them in the upper 80 percentile relative to all employees.
• Using the home as a reasonable accommodation per the Americans with Disabilities Act, 316,000 people regularly work from home.

For the organization or the manager, the key to success is being able to communicate effectively and efficiently with remote employees. Companies need to find effective ways to manage internal communications and to provide the remote employees with opportunities to become more visible. Email is going to become the primary means of communication between the employee and the manager. There must be constant and clear communication. While communication occurs via various technologies daily, I recommend that you have the employee travel to the office every couple of weeks or so. One obstacle with remote employees is their ability to build strong relationships with their team members. The employee will need to have an opportunity to reconnect with his/her team members.

An employee of the U.K.-based outfit called Pearn Kandola, Psychologist Stuart Duff and his researcher colleagues found that “it's the employees who chase socialization who thrive in the land of virtual work. The office gabbers. Those who are life of the break-room party. Left on their own, these types of workers are the ones who work closely with clients, chum around with colleagues, and talk it up with bosses. They stay connected no matter where they are. It comes naturally to them.”

So, I’m hearing that it’s the pro-active, go gettem employees that are successful in a remote status. If you have an employee that requires constant supervision, prodding, etc., their chances of success may be a bit less. Okay, I weighed in.

Yes, there are disadvantages to remote work. For the employee, it may be the ability to separate work from personal life. The two seem to co-exist at all hours. For the managers, oftentimes there are uncertainties and/or fear regarding the remote employee. As a manager, you need to focus on what the employee produces rather than on their physical presence in the office. In the paper “The State of Telework in the U.S.” June 2011, Kate Lister & Tom Harnish, “the biggest barrier to telecommuting, by a wide margin, is management fear and mistrust.”

A remote workforce can be a benefit to an organization. It allows an organization to reap the benefits of having talented workforce all over the globe, creating a larger organizational presence in your industry.

Job Descriptions and the ADA

In July of 1992, the American with Disabilities Act (ADA) was born. If you are an employer with 20 or more employees, you are subject to ADA.

When an employer documents the work environment conditions in a job description, the employer takes a step toward ADA compliance. A well-developed job description should detail the “essential functions” of the job. This can be extremely helpful when an employee requests a reasonable accommodation under ADA.

Ensure that your job description of the physical requirements of the job is accurate. How much exposure to environmental conditions does the job require? How much noise exists in the typical work environment? Does the employee face exposure to blood-borne pathogens that require use of personal protective equipment?

Under the ADA regulations employers must provide "reasonable accommodation" to those individuals who qualify under ADA. Amending an essential function of the job may not be a reasonable accommodation - unless of course it can be modified. But how will you be able to make the decision about a "reasonable accommodation" if you don't have the job description with the essential functions listed?

Job Descriptions

Whether you are a small or large employer, your people need to know where they fit in the organization and what is expected of them. If an employee doesn’t understand what your expectations are, how can the employee be successful? That is where the job description comes into play. Job descriptions are written statements that define the role of the employee. It describes the duties, responsibilities, reporting relationship and qualifications for a specific job.

If you have job descriptions, remember they are living documents. Don’t just file it away in a filing cabinet. Both the supervisor and employees should refer back to the document as necessary. When an employee is currently performing in the role it is extremely important to obtain their input on the job description. Is it accurate?

On the legal front, it’s a good practice to ensure that job descriptions are current. Any organization is vulnerable to challenge under ADA, FLSA and civil rights legislation if they don’t have a job description that is accurate and current. Update the job description as the employees’ responsibilities change. When you update the job description, look at areas such as: What function has been added/deleted from the job? Is there a new hire that possesses skills that are not tracked in the old description? When a higher level of contribution, such as skill or knowledge, from the position is required; has the educational requirement, licensing, certification needs changed? If there are any changes that are required, advise HR.

During your performance appraisals, take the time to review the job description. Use the job description to set measurable performance goals based on the duties in the job description. Performance Management is an integrated approach to ensuring an employee’s performance supports and contributes to the organization’s strategic aims. Performance cannot be managed successfully via the use of outdated job descriptions (job descriptions that do not list the real, current, functions of the job).

With a job description – employees are more productive because they understand what is expected of them. When they know what is expected of them – they are able to work more efficiently.

Miniature Horses as ADA Accommodations?

Would you allow a Miniature Horse in your organization as an accommodation for an employee with a disability?

Beginning On March 15, 2011, only dogs are recognized as service animals under Titles II and III of the ADA. However, in addition to the provisions about service dogs, the revised ADA regulations address another "service animal" for which a separate provision has been added. This new revision addresses miniature horses that have been trained to work or perform tasks for people with disabilities. Entities covered by the ADA must modify their policies to permit miniature horses where reasonable.

Under these revisions, there is a four-factor test to assist organizations in determining whether or not a miniature horse can be accommodated in the facility. Those assessment factors are:

• Is the miniature horse house-broken;
• Is the miniature horse under the owner's control;
• Can the facility accommodate the horse's type, size and weight; and,
• Does the presence of the miniature horse compromise legitimate safety requirements necessary for the safe operation of the facility?

In closing, carefully review your company policies and practices regarding the use and admittance of Service Animals in your organization.