Employee Accountability

I ran across a definition for accountability that I feel truly identifies its precise meaning; ". . . the responsibility of the employee to accomplish with integrity the defined and assigned tasks required by his/her job within a reasonable time in order to assist the organization to fulfill its goals." 

Is employee accountability important?  Yes!  Employee accountability is important to a business's success as a whole.  It is the cornerstone of business success.  A Gallup poll estimates that the lost productivity that stems from disengaged and unaccountable employees costs American businesses between $287 and $370 billion annually.  This is through customer loss due to poor service, high employee turnover and quality control issues, just to name a few impacted areas.

How can you engender a culture of accountability in your workplace?  Through the effective communication of goals, expectations, success and failures.   These are the fundamental tenants of accountability. 

Establish the beliefs and values required for accountability in your organization.  Behavior will follow belief.

• Communicate accountability
• Coach accountability
• Practice accountability

Terminating With Dignity

One of the less enjoyable aspects of my job is having to terminate an employee.  While the decision to terminate may be the best step for the organization, one of HRs goals should be to maintain the employee's dignity throughout the process.  When it is necessary to terminate an employee, here are a few guidelines that I recommend:

1. Consider the timing.  NEVER terminate on a Friday.
2. Always plan out the termination.  Who is terminating the employee and what should be said. 
3. During the termination process, provide the employee with positive feedback about some aspect of their work performance.  They need the kind words!  "Even in the termination based on performance, prompted by the fact that acquired skills were not adequate for a particular situation, the person's assets and liabilities can still be acknowledged," wrote Richard Bayer in Business Horizons.
4. Have an information package available for the employee.  It should contain items such as a termination letter outlining the reasons for the termination (remember to stick to the facts).  Discuss severance, compensation for unused vacation, unemployment compensation, benefits, any type of outplacement assistance, etc.
5. Don't allow yourself to be caught up in the emotions of the termination process.
6. Allow the individual to vent if necessary. After they have vented, allow them a decompression period.  They need to have some control over their departure!
7. Always, always, handle with compassion.

Please remember that each termination decision that is made carries a profound impact on at least one human being's life.  Handle with care.

Working Families Flexibility Act (H.R.1406)

(Not to be confused with the Flexibility For Working Families Act)

Over heavy opposition by the Democrats, a hotly debated bill was passed May 8th by House Republicans that will potentially loosen federal overtime laws.  The bill would amend long-standing labor laws (the 75 year old FLSA) by allowing private-sector employers to offer compensatory time off in lieu of time-and-a-half pay for overtime.  (The protections under FLSA were put in place to prevent employers from abusing the system and avoiding paying overtime to workers who put in more than 40 hours per week.)

The supporters of the bill have pitched it as an update to federal law, with the obligatory fluff that "it's about helping working moms and dads, providing the ability to commit time at home," per Rep. Martha Roby (R-Ala). 

Under the bill, employees may use their comp time only at the employer's convenience.     If a business is necessarily inflexible when it comes to scheduling time off as the business may relay on a small number of employees for an entire function, then comp time may not be a viable alternative.  For the small employer, the concern may be the potential lost productivity and the additional paperwork for tracking comp time accrued and used.

Yes, the bill has put in provisions to protect against abuse, and only offers the workers a chance to opt for the extra time off if that's what they want.  But I side with the Democrats that such an option is ripe for abuse by unscrupulous employers.  The bill is a potential way for extra work to be imposed on workers with no additional cost to the employer. 

Vicki Shabo is the Director of Work and Family Programs of the non-partisan National Partnership for Women and Families.  Her organization is staunchly opposed to H.R. 1406 and sees it as a wolf dressed in sheep's clothing.  "This is a dangerous proposal that pretends to be something that will help working families.  It will take money out of worker's pockets for overtime pay that they otherwise would have received in wages and instead replace it with possibly an empty promise or a mirage of time that's out in front of them that they may never be able to take."

"For the record, there are many ways for Congress to improve both worker pay and work life balance, including raising the minimum wage, instituting paid sick leave, ending discriminatory pay practices, easing the formation of unions and promoting advance notice for worker scheduling,  The House bill ignores what is helpful and embraces what is harmful."  The New York Times, May 10, 2013.

I highly doubt that this bill will go much further. The White House stated in early May that the president would be advised to veto such legislation on the grounds that it would weaken protections in the Fair Labor Standards Act.

The Flexibility for Working Families Act (H.R. 2559, S. 1248)

Rep. Carolyn Maloney (D-NY) and Sen. Bob Casey (D-PA) have reintroduced legislation that would provide employees with a statutory right to request flexible work terms and conditions.  "To permit employees to request, and to ensure employers consider requests for, flexible work terms and conditions and for other purposes."  (Govtrack.us)  If passed, the act would authorize an employee to request a change in the terms or conditions of employment relating 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.

To be eligible under this bill, an employee would have to work an average of at least 20 hours per week, or at least 1,000 hours per year.  Employers with fewer than 15 employees would be exempt.  The measure additionally contains anti-retaliation provisions.

The act would require:

1. Notification/request from employee to employer.
2. Employer would be required to hold a meeting with the employee to discuss the application.
3. Employer must provide a written decision to the employee regarding the application "within a reasonable period" after the meeting.
4. 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.
5. If the employee is dissatisfied with the proposal and has a second supervisor, the employee has the right to have the second supervisor reconsider the alternative schedule.

Current status:  The bill has been assigned to a congressional committee as of June 27, 2013. 

Legal Mistakes by HR (Part 2)

Many employees are unaware that their computers can be monitored without their knowledge. If they have a computer, it's the employer's window into their workspace. Employers should take steps to notify employees that monitoring is taking place. 

2.  Permitting an expectation of electronic privacy.   Remember to advise your employees that there is no expectation of privacy on their company computers.   "With businesses losing billions to computer crime and employees wasting considerable time on their computers looking at sports updates, the latest fashion trends, and even less appropriate websites, business are cracking down by monitoring their employees.  The efforts are to ultimately reduce scams, identity theft, computer crimes, fraud, sexual abuse, piracy, and threats.  As a result, many businesses have resorted to online monitoring of their workplace computers"  (Texas Business Today, Fourth Quarter 2012). 

While the Electronic Communication Privacy Act (1986) comes close to creating a starting point for a legal foundation of what can and cannot be done, legal and ethical debates on electronic monitoring and surveillance in the workplace continue. 

*There may be additional rights for employees in California given specific statutes of that state.

Legal Mistakes by HR (Part 1)

Yes, it happens.  We have a host of responsibilities and every once in awhile, HR can make a mistake.  Oftentimes multi-tasking results in our missing a step in a sequence or forgetting something.  We simply allow something to fall through the cracks.  Over the next couple of days I am going to focus on a handful of mistakes that I see as real landmines.   

1.  Failure to train supervisors.  Unintentional or not, supervisors say or do things that put the entire company on the hook.    A seemingly harmless question during the interview process such as "what church do you attend" or "how old are you" can spark a discrimination lawsuit.   Ignorance may be bliss, but it's not an excuse (or defensible in a court of law).

Ensure supervisors learn how to listen for leave requests that may fall under the FMLA umbrella and trigger FMLA protections. Remember, employees don't have to specifically ask for FMLA.  It is extremely important to train your management staff and front line supervisors on what constitutes notice of FMLA.  Further, the supervisors have an obligation to take action if they suspect an employee has provided notice. 

Why is training so important?  Let's take a look at the discount chain Target for just a moment.   Multi-cultural tips (via a controversial document) recently distributed at one Target location has sparked claims of discrimination by three employees.  The document which Target claims is not part of it's company-wide training program, called “Organization Effectiveness, Employee and Labor Relations Multi-Cultural Tips," was distributed to managers.  The document included subtitled sections like "intercultural differences."  What were the intentions of the managers?  You can only guess.  Here's an excerpt from the document:

1. Food: not everyone eats tacos and burritos
2. Music: not everyone dances to salsa
3. Dress: not everyone wears a sombrero
4. Mexicans (lower education levels, some may be undocumented)
5. Cubans (Political refugees, legal status, higher education level)
6. They may say “OK, OK” and pretend to understand, when they do not, just to save face.

Recognize the potential areas for training within your organization.  One size doesn't fit all so tailor your training needs to your organization. 

New York Surveillance Of "Texting" Drivers

We all know that if an employee uses either your cell phone or theirs and causes an accident while doing business on the cell phone, your company could be held liable for damages.  That's why we have policies prohibiting employees from using cell phones while driving.  You have a policy?  Right?  We also know that different states have different laws regarding cell phone use, extending to texting while driving? Right?   Well New York is now taking some rather unique steps to catch drivers in the act of texting.

Officers are going stealth mode by using undercover state police cars that are designed to sit higher than a normal SUV.  This fleet of slightly elevated SUVs joined the statewide $1 million anti-distracted driving effort designed to crackdown on texting drivers.  Called "Concealed Identity Traffic Enforcement" (CITE) vehicles, they come in a variety of colors and look like any other SUV.

The penalty for texting while driving?  Under the law, new drivers with probationary or junior licenses can have their licenses suspended for 60 days if caught texting while driving.  Those same drivers could have their licenses revoked for up to six months if caught a second time.

Global Mobility and Crisis Planning

One of the most devastating things that can happen to a family is the unexpected death of a loved one.   You can't plan for it, death tends to come as a surprise.  And when the death occurs overseas the experience is even more traumatic.  The cultural and legal aspects of death and dying are varied across the globe.  Local customs, laws and procedures may not be clearly understood, creating barriers during an already trying time.

While we don't like to talk about the subject of death abroad, and I don't wish to be morbid, we must plan for every possible scenario.   Develop an Emergency Response Plan detailing steps to be followed addressing the death of an employee or any other crisis event such as a disappearance.  When building a plan, consider the following:

Disappearance:

1. Gather information (when/where last seen?  Last contact?  How traveling?  Was s/he seen with someone?  What search efforts have been initiated?)
2. Advise the U.S. State department.

Death:

1. Begin an event log, gathering background information and report crisis developments and responses.
2. Confirm status through local agencies (police, hospital, consulate)
3. Establish communication with family.
4. Seek assistance from U.S. Embassy/Consulate.
5. Contact local police and/or other law enforcement authorities in the country.
6. Coordinate the repatriation of remains. 

On the domestic front we plan for emergencies such as floods and tornadoes.  We follow OSHA guidelines in the workplace for the safety and protection of our employees.  Companies doing business on a global level should review their travel policies and ensure that a protocol has been established for dealing with the illness, injury and/or death of an employee. Ensure that it addresses the medical evacuation and/or shipping of the remains. 

Pending Legislation in Texas

Below is a small sampling of employment-related legislation filed in the Texas Legislature.   If passed and signed into law, these will have a tremendous impact on Texas employers.

HB238/SB237
Prohibition of employment discrimination on the basis of sexual orientation or gender identity or expression.

HB321
Deferred adjudication may not be used as a factor in employment decisions, housing or issuance of state licenses.

HB667
Puts leave for foster children on same basis as leave for biological or adopted children.

HB950
Incorporates federal law in the Lily Ledbetter Fair Pay Act of 2009.

HB1829
Relating to safe patient handling and movement practices at hospitals and nursing homes.  No retaliation or discrimination toward staff members who refuse to participate in unsafe handling of patients.

HB1188
Relating to limiting the liability of persons who employ persons with criminal convictions.  Tightens up on standards for proving negligent hiring and supervision of employees with prior convictions.

HB494/SB741
Extends to two years the time limit for filing a wage claim with Texas Workforce Commission.

SB340
If TWC finds bad faith on employer's part for failure to pay wages, it "shall" impose a penalty (instead of "may").

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.

Insubordination

We have all heard the term "insubordination," an employee's willful disregard for a supervisor's direct orders.  But what does insubordination really mean?  How do you determine whether insubordination has occurred and what should you do about it?  Simply complaining about an assignment does not constitute insubordination. 

Insubordination can be active or passive.  Active insubordination may be the refusal to do something, challenging the directive, confrontational behavior, the use of abusive language or even physical violence.  Passive insubordination may be exhibited by the employee's willing failure to complete a task. 

To prove insubordination you must establish three important elements:

1. It has to be recognized as a direct order. 
2. The employee received and understood the order.
3. The employee refused to obey the order through an explicit statement of refusal or through nonperformance.  

A few words of caution.  Before any claims of insubordination are raised, take a moment to:

1. Assess how the order was issued.  It can't be a suggestion.  Whether verbal or written, did it clearly communicate the who, where, what and when? 
2. To establish insubordination, the order must relate to work being performed.  Always validate that the order was reasonable.
3. Could other factors influence the employee's actions?  Perhaps the employee did not willfully intend to disobey.  Does the employee have a pattern of unacceptable behavior?
4. An employee has the right to refuse an order if they are being asked to do something illegal or dangerous, or in violation of a published safety rule. 
5. The employee must be told that failure to perform the task/assignment is grounds for disciplinary action on the basis of insubordination.
6. Allow employee adequate time to comply with order before discipline is imposed.  You can't ask an employee to complete a 2 hour task in 30 minutes.

Abusive language by employees towards supervisors can also be considered insubordination.  However, you must always consider the context in which the incident occurred.  To confirm that an employee was engaged in insubordination, the abusive language:

1. Was not provoked by the manager.
2. Occurred in the presence of other employees or customers.
3. Was not an example of "shop talk" in the workplace.

While our first reaction to insubordination may be to fire the employee immediately, allow a cooling off period.  Take the time to review your disciplinary policy. Review the employee's past history. Carefully consider all the facts, all the actions, prior to punishing the employee.   On occasion employee insubordination can be attributed to a breakdown in communication.   While termination may still be the correct course of action, you'll have all your facts in place.   
 

Is Your Office Hazardous To Your Health?

The personal injury law firm of Brent & Adams Associates released a list of the most common worker's comp-worth maladies:

• Repetitive stress injuries, such as carpal tunnel syndrome
• Lifting injuries
• Slip and fall injuries
• Injuries resulting from tripping on stairs or loose carpeting.
• Deep-vein thrombosis, caused by prolonged sitting.
• Strains from bending or falling out of unstable desk chairs.

Who knew that working in an office environment could be so hazardous? 

When people think of occupational safety and health needs, they picture dangers around constructions sites or factories.  However, office workers face many unique challenges to their safety and health.  As an employer you should provide your employees with training and education to improve their workplace safety and health.  Need a resource?  Look to OSHA for guidance.

Safeguard the Front Door

Great title, right?  In response to my recent blog on Candidate References, an associate forwarded an article to me for my reading pleasure.  While I can't identify who wrote it or when, I felt I needed to share a portion of it.  He/she did a fabulous job in writing this.  So, here goes .. .

"Rule one in minimizing risky behavior is to prevent questionable job candidates from ever becoming employees.  It isn't enough to study resumes closely; studies have shown that over 50% of them contain inaccuracies.  Basic controls include employment and background checks.  As a recent example, a simple background check would have saved the Yahoo board the trouble of ousting Scott Thompson, the company's fourth CEO in five years, because he falsely claimed a computer science degree.  A growing number of companies conduct behavioral and honesty testing to screen employees."

Paperwork people.  It's all about paperwork. 

Policies: Do the Employees Get It?

Earlier today I had a long-tenured employee ask “What are the procedures for documenting sick leave?”  “ .. . . I realize it is documented someplace but I’m not sure where and I thought you would know it off “the top of your head” saving me the trouble of finding it.”    I smiled.  This document in question is located in both the employee handbook as well as a standalone policy on the HR portal.

Companies devote substantial time and resources in developing policies.  Once policies are developed we roll them out in meetings, post them, put them on the company intranet, distribute them via email, and/or hard copy distribution.   We obtain the signed acknowledgement as proof that the employee received and is aware of the policy - thereby negating any future claims from the employee that s/he "didn't know."   But no matter how or how often policies are communicated, sometimes it seems the company falls short in the communication of the policy.  Are the policies then wasted?  No, but perhaps we need to better understand our audience.  How are our employees receiving the information we are communicating?  Words must always be carefully chosen; nuances must be considered. 

My recommendation, schedule assessments of your company policies at regular intervals. This will allow you to assess the employee understanding of the policies and to obtain feedback.

Yes, you will still have the rare employee who finds it easier to ask HR than look something up.  But, after all, that's why we're here!

Workplace Violence

"Workplace violence is now recognized as a specific category of violent crime. . . "  FBI, Workplace Violence, Issues in Response.

 

It is believed that 2 million American workers are victims of workplace violence each year.  2012 statistics reflect that nearly 1 out of 5 occupational fatalities is attributed to workplace violence.  In 2011, 780 fatalities (attributed to violence) occured with men making up the majority of fatal workplace injuries.   Media coverage has a tendancy to create an impression that workplace violence is more widespread than it is.  While incidents of workplace violence are serious, the rates of workplace violence have dropped sharply since the mid-90s.

 

Whether harassment or intimidation, the threat of physical violence or other threatening behavior, the prevention of workplace violence is a major concern for employers and employees.  Employers should train managers and supervisors to recognize the warning signs of potential workplace violence. 

 

Here's a couple of basic steps you can take:

1. Communicate, Communicate, Communicate.  Ensure that the employee has an outlet for frustration.  Allow the employee to vent.  If your organization offers an Employee Assistance Program, ensure employees are aware of it and can use it as needed.
2. Assess your business climate.  Be aware of what's going on in your workplace. Pay attention to unusual changes in employee behavior. Has there been any recent events which could increase the sensitivity of an employee?   (Devil's Advocate here.  A couple of questions.  Do you know the spouse's names of your employees?  How many children they have, their names?  Are they going through a divorce or other life trauma?  If you can't answer these questions, you don't know your employees.  If you don't know your employees, how can you tell if there is something wrong?)
3. Prevention.  Employees spend the majority of their lives in the workplace.  Disagreements are always going to happen, how you handle those disagreements is key.  Potential aggressors can be identified - just look for the warning signs. Warning signs can include strange behavior such as the employee becoming reclusive, erratic behavior, deteriorating appearance.  Other observable warning signs can be emotional problems and/or performance problems.

The 2012 documentary, Murder by Proxy: How America Went Postal, is framed around the USPS shootings that took place in the 80s and 90s. I found the documentary interesting as a provided the perspective of a postal carrier who survived a shooting in 1991 (Royal Oak, Michigan) and his ongoing efforts to urge lawmakers to pass legislation designed to curb workplace employee "abuse."  Not just a film about mass murders, the documentary addresses some of the underlying issues within the workforce that drove individuals to begin killing at random.   

 

In the closing minutes of the documentary, possibilities other than mass workplace shootings are considered.   James Alan Fox, Ph.D., Lipman Professor of Criminal Justice at Northeastern University, states; "Sabotage could be even more deadly and a greater risk to safety than bringing a gun to work." "It could be poisoning products, creating environmental contaminants. . . "  (September 1982 seven people in the Chicago area were killed by Tylenol capsules laced with potassium cyanide.  I don't believe this case was ever solved, so I can proffer the scenario that this could have been the work of a disgruntled employee. )

 

The bottom line? Workplace violence needs to be proactively dealt with.   We can't completely eliminate it, but we can mitigate risk for violence by educating and training our managers, supervisors and employees.

Religious Accommodation

Good Friday is right around the corner.  That day will always serve as a reminder to me of the event forever referred to as The Employee Mutiny of 2011.  In 2011, I upset a few employees by converting the Good Friday Holiday to a floating holiday.  Yes, change is difficult, no matter how small the change.  But with proper communication the employees came to understand that they didn't lose the day, it was just handled a bit differently. 

 

Religious discrimination by employers is expressly prohibited by Title VII of the Civil Rights Act of 1964. Although employers don't have to satisfy an employee's every desire in accommodating his/her religious beliefs, employers are required to make "reasonable accommodations." The most common such accommodation is granting an employee time off to observe a religious holiday.

 

My goal in converting this to a floating holiday was to allow other employees, with different religious beliefs, to have a holiday for their use.  As any organization grows, you want to be able to recognize all religions.  (Another basic step is to modify the vacation/PTO policy to reflect the use of available vacation time for religious holidays not normally recognized by the company.)

 

We live in a beautiful and diverse world!  There's Christmas, Hanukkah, Kwanzaa, the feasts for Santeria.  We have Hindu holidays, Muslim holidays and even Pagan holidays.  Employers and HR professionals all struggle with how to celebrate them, how to recognize the diversity of these religious beliefs and practices.  With care, communication and understanding, the process is easy!

 

Confidential Data at Risk

In May of last year I blogged about data leaving company networks through non-secure mobile devices  ("Data Breach").  A hot topic, companies are increasingly concerned about losing trade secrets and proprietary information to competitors and thereby loosing competitive advantage. 

 

Conducted by Ponemon Institute in October 2012 and just released is Symantec's survey What's Yours is Mine: How Employees are Putting Your Intellectual Property at Risk.    Survey results reflect that half of employees who left or lost jobs in the last 12 months kept confidential data, 40% planning to use that data in their new jobs.    Only 38% of employees surveyed said their manager views data protection as a business priority, and 51% think it is acceptable to take corporate data because their company does not strictly enforce policies.  More and more we see that employees' attitudes and beliefs about intellectual property (IP) theft are at odds with the vast majority of company policies.

Survey highlights: 

1. 62% respondents:  Feel it is acceptable to transfer work documents to personal computers, tablets, smartphones or online file sharing applications.  The majority never delete the data they've moved because they see no harm in retaining the information.
2. 44% respondents:  Feel that a software developer who develops source code for a company has some ownership in his or her work and inventions.  42% respondents do not feel it is a crime to reuse the source code, without permission, for other companies.

As technology continues to evolve, organizations face the growing challenge of protecting stored sensitive data from unauthorized exposure. Surprisingly, most companies do not address the danger of stealing electronic information through the use of smartphones such as iPhone, Android or Blackberry.  Symantec ". . . once mostly forbidden by IT, smartphones are now being used by hundreds of millions of employees throughout the world to access corporation information. . . ." 

 

To protect and prevent against the loss of proprietary information, companies may implement the following:

1. Well communicated and enforced Confidentiality and Non-Disclosure Agreements
2. Data Protection Policies that monitor access and use of confidential data
3. Separation Agreements
4. BYOD (Bring Your Own Device) Policy

Most importantly, educate your managers and employees!

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.

Concerted Activity

When you think of the term "concerted activity" there is often an automatic assumption that a union, or union activity, is involved.  But that's not always the case.  Section 7 of the NLRA states "Employees shall have the right to self-organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. . . " 

 

Protected concerted activity sometimes has nothing to do with unions at all.   Employees who get together and complain to management about their pay or benefits is engaged in concerted activity.   Concerted activity can include internal complaints of discrimination, discriminatory harassment complaints, etc., all of which is protected by Section 7 of the NLRA.  

Gun Control?

This morning I began working on a blog addressing gun control in the workplace.  Little would I know that later today, at 1:30PM, a handful of people would be shot at the Lone Star College here in Houston.    I wasn't aware of the situation immediately, being holed up in my office behind a computer screen at the time.   The situation was brought to my attention by a fellow employee whose girlfriend was on campus that day.  Her safety became our immediate concern.  (I'm glad to say she is fine, having been in the Student Services office at the time.)

For employers:
In September 1, 2011, SB321 went into effect restricting public and private employers from prohibiting employees who are concealed handgun license holders, or otherwise lawfully possessing firearms or ammunition, from transporting or storing firearms or ammunition in the employee's privately-owned, locked car on the employer's premises. (This bill does not apply to an employer owned or leased car; most school districts, chemical manufacturers and oil/gas refineries.)

With employers focusing more and more on the safety of employees, some employers feel that SB321 is an infringement on their property rights. Further, that allowing employees to be in possession of firearms on company property endangers all employees by allowing easy access to weapons by any potentially violent or disgruntled worker.

The gun control debate continues to be waged furiously between those who want tougher gun control laws and those who support the right to bear arms under the Second Amendment.   Adding fuel to the fire are employers and employees squaring off on the subject and the potential threat to safety in the workplace. 

The blog on gun control will have to wait until another day.  The subject hit a bit too close to home today.