March 8th, 2010 by Kathryn Carlson
The number of lawsuits, claims and settlements’ involving dealerships and the EEOC continues to grow in 2010. Beyond gender and age discrimination employees must also ensure that they do not discriminate against individuals with real or perceived disabilities. Just this month a dealership in Hawaii settled a claim that included a $32,500 payment to a job applicant and a three year consent decree to remedy alleged disability discrimination. The consent decree requires that the dealership implement an internal policy, procedures and staff training to safeguard against disability discrimination. The car dealership must also submit annual reports to the EEOC to track future complaints of disability bias and requests for disability-related accommodations during the hiring process.
In its lawsuit (EEOC v. Valley Isle Motors, Ltd., Case No. CV09-0053 HG KSC), the EEOC asserted that the car dealership reneged on an offer to hire a job applicant as a salesperson only after a urine test revealed he was taking prescribed medication. Valley Isle Motors then erroneously perceived the applicant as too disabled to do the job despite normal medical test results and medical authorization to the contrary, the EEOC said. The EEOC press release quoted Anna Y. Parks, regional attorney for the EEOC’s Los Angeles District Office. “Employers cannot make assumptions about a prospective employee’s ability to work… the ADA expressly prohibits that stereotypes of this nature weigh into the decision to hire or deny hire to an individual.” Timothy Riera, director of the EEOC’s Honolulu Local Office, added “Employers should heed the lesson learned by Valley Isle Motors and be mindful to judge a candidate by his or her qualifications, not some ill-informed presumption. Communication with prospective employees is the key in determining whether one’s actual or perceived condition will interfere with work. Businesses should take advantage of appropriate training opportunities that are available to learn how to appropriately engage in that interactive process.”
The bottom line is that employers cannot make an assumption about the candidate’s ability to perform the work and must make certain that all hiring practices are in accordance with the Americans with Disabilities Act. Here are five simple steps that will help toward ensuring that you are not discriminatory toward individuals with real or perceived disabilities.
1) Have a clear, complete and detailed job description for every position so that you can objectively judge a candidate’s ability to do the job against the actual requirements.
2) Confirm with a medical expert that the applicant can do the job with reasonable accommodations or that the perceived disability is even real. A medical exam may be necessary and your expert should have experience in Occupational or Workplace Health.
3) Consider that individuals with disabilities often make high quality and loyal employees. Tax credits may be available to assist companies with making reasonable accommodation and for hiring individuals with disabilities.
4) Take advantage of the tools and training available through your state or federal office of the Department of Labor including the excellent information on the EEOC website. http://www.eeoc.gov/laws/types/disability.cfm
5) Consult with qualified legal hiring prior to not hiring any individual with a disability.
Tags: Department of Labor, EEOC, employment discrimination, Enforcement, HR best practice, HR compliance
Posted in Department of Labor, HR |
March 4th, 2010 by Patric Timmermans
Last month, OSHA has identified and sent letters to approximately 15,000 workplaces with the highest occupational injury and illness rates and is urging the employers to take action to remove hazards causing the high rates. The employers are those whose establishments are covered by Federal OSHA and reported the highest “Days Away from work, Restricted work or job Transfer injury and illness” (DART) rate to OSHA in a survey of 2008 injury and illness data.
The letter encourages employers to consider hiring an outside safety and health consultant, talking with their insurance carrier, or contacting the workers’ compensation agency in their state for advice.
Did you receive one of these letters? How are you going to respond to this letter? Let us know.
Tags: OSHA
Posted in OSHA |
March 2nd, 2010 by Kathryn Carlson
If you haven’t already reviewed your screening and hiring policies on applicants with criminal records put it on your “to do list” for 2010. Highly published and expensive lawsuits related to negligent hiring make it seem that background screening is necessary step in your hiring process- but is it? With experience both as a HR Director and working for a leading background screening vendor, my answer is maybe- it can be an important step and will reduce risk but only if done in accordance with best practices and within the state and federal regulations.
The Employment Opportunity Commission (EEOC) and the federal courts will soon require evidence-based screening and hiring policies. Within the next 12 to 18 months, employers can expect to see the EEOC issue new guidelines that require empirical evidence for the “business necessity” defense in racial discrimination cases that arise from screening and hiring practices. Employers will benefit from having clarity in what is permissible. If you now use the common five-year, seven-year, 10-year or lifetime employment bars for people with criminal records you need to think about how you can validate this information and show business necessity for the specific employment bar. Most screening vendors claim that criminal checks reduce workplace violence, theft and fraud, but don’t have any meaningful empirical evidence- with the expected EEOC guidelines and recent lawsuits on discrimination based on background screening they should be working to produce this information over the next several months. If you current vendor can’t help you will need to consider a new vendor. Employers may also look to the work of social scientists such as Alfred Blumstein and Shawn Bushway. Blumstein published a major study in 2009 that actuarially identifies the point at which an individual with a criminal record is at no greater risk of committing a crime than other individuals of the same age.
The bottom line is that employers should not use background screening as the only criteria for hiring or screening applicants. Behavioral interviewing and assessment testing along with reference checking are also important tools. If you are using background screening having job-specific hiring policies and a case by case review of all background screening results is recommended- and don’t forget two time tested HR practices for mitigating risk: proper supervision and effective performance management.
Join the conversation: Do you use background screening in your hiring process and do you believe it reduces the risk of a bad hire or a negligent hiring lawsuit?
Tags: Department of Labor, EEOC, employment discrimination, Enforcement, HR best practice, HR compliance, litigation
Posted in Department of Labor, HR |
March 1st, 2010 by Patric Timmermans
Recently a dealership experienced a 500-gallon release of new lube oil when overnight one of the overhead lube oil distribution lines sprang a leak. The air powered pump at the oil tank detected a pressure drop and fired off. With no one around to see the oil spewing out of the broken line, it kept operating until the entire contents of the tank had been pumped out onto the shop floor, creating a tremendous mess. Many dealerships fail to secure the supply of compressed air to these pumps at the end of each workday. Thus any pipeline failure could result in a similar incident.
If your dealership operates these air driven oil distribution pumps it is important to ensure that, after hours, the supply of compressed air to these pumps is secured. A common way to achieve this is to shut off power to your air compressor and bleed your air lines. You may have other procedures that would work as well but the key is having an employee in charge of the process every day.
Tags: compliance tip of the month, EPA
Posted in EPA, Environmental, Tip of the month |
February 18th, 2010 by Kathryn Carlson
If you manage employees at some point you have to have the tough talk. You know what I am talking about- the talk about poor performance, unacceptable behavior or the most dreaded conversation- hygiene issues. While these conversations are never easy they must be had. You owe it to the employee, you owe it to your employer and you owe it to yourself to step up to the plate and learn how have these conversations. I won’t promise it will ever be easy, after 25 years in the workplace as a manager and as a HR Director I still don’t like having to have this type of talk with an employee (who does?), but these tips will make it easier- and raise the odds the feedback will be accepted and the behavior will change.
Tips for Tough Talks- Address the problem as soon as possible- problems don’t go away, they just get bigger and more difficult to deal with the longer you wait. Set a specific time and place- but don’t make the employee wait for more than 24 hours after you let them know the tough talk is coming. Sit, don’t stand- it’s a converstation not an interrogation. Find a private location- maybe a neutral site like a conference room or another manager’s office. Focus on the issue, not the person. Discuss the problem and the impact on the business and avoid “you” statements. Be specific about the concern- how, what, when should all be part of the discussion. Be collaborative- problem solve, brainstorm solutions with the employee and the more likely they are to accept feedback. Accenuate the positive- how will a behavior change positively impact the employee? Encourage the employee- share with them how changing the behavior will have a positive impact. Document the meeting- for feedback session keep detailed notes, if a more serious violation use a Discipline Action Form. You must start the “paper trail” and have good documentation in case the final verdict is termination.
A great resource for handling tough talks is Crucial Conversations by Kerry Patterson, Joseph Grenny, Ron McMillan, Al Switzler and Stephen R. Covey.
Join the conversation- how do you handle tough talks with employees?
Tags: employee morale, HR best practice, HR compliance
Posted in HR |
February 16th, 2010 by Eric Schmitz
Ran into a vendor at NADA yesterday that sells Spray-on bed liner systems. This particular vendor sells complete systems and all necessary Personal Protective Equipment. This was the first time I have ever seen a vendor sell appropriate supplied air systems as a piece of their package. In most cases dealerships are left to determine for themselves what protection is needed when they purchase a bed-liner application system. While most newer spray on bed liners are VOC free they still contain many chemicals that can pose inhalation hazards for employees. Much like vehicle undercoating, with the right products this is one of those situations where you may be able to get by with a designated area with great ventilation, but the potential hassles just aren’t worth it. By spending a little extra time to setup a respiratory protection program and protect your employees, the dealer will have the peace of mind that employees are protected, and the dealership is not subject to future complaints, lawsuits or citations.
Tags: personal protective equipment, respiratory protection, spraying
Posted in Health |
February 8th, 2010 by Patric Timmermans
Are you going to NADA this year? Mark these workshops in your calendar:
Location: NADA exhibit hall, room W102A (one level down from the expo floor)
| Saturday, February 13th |
| 10:00 – 10:30am |
OSHA’s top 10 most cited violations by auto dealers |
| 11:00 – 11:30am |
Search and Social: How Social Media Makes Search Easier |
| 12:00 – 12:30pm |
The 10 Deadly HR Questions |
| 1:00 – 1:30pm |
Social Media: Why and How |
| Sunday, February 14th |
| 10:30 – 11:00am |
Search Engine Reputation Management: Owning Your Name |
| 11:30 – 12:00pm |
The 10 Deadly HR Questions |
| 12:30 – 1:00pm |
Search and Social: How Social Media Makes Search Easier |
| 1:30 – 2:00pm |
OSHA’s top 10 most cited violations by auto dealers |
| 2:30 – 3:00pm |
The 10 Deadly HR Questions |
| 3:30 – 5:00pm |
A Dealership Case Study in Online Marketing Excellence |
| Monday, February 15th |
| 10:00 – 10:30pm |
The 10 Deadly HR Questions |
| 11:00 – 11:30am |
OSHA’s top 10 most cited violations by auto dealers |
Tags: HR software, Internet Marketing, OSHA
Posted in HR, OSHA |
February 4th, 2010 by Patric Timmermans
I just read this great article “Top Three Myths about Workplace Injuries” in EHS Today. A summary of the Myths:
Myth #3 – You cannot create a hazard-free workplace – It requires discipline and diligence to recognize and mitigate every hazard.
Myth #2 – Being safe takes too much time and money – If you feel that being safe takes too much time and money, you have an attitude problem.
Myth #1 – Accidents just happen – Research shows that over 99 percent of all accidents are preventable.
I completely agree that these are major myths. Wayne Curtis wrote an article in our latest newsletter about two shining examples of Group 1 Automotive and Penske Automotive Group how these issues can be managed. Though both groups consist of nearly 100 dealer rooftops, these Groups have effectively managed their compliance scores of environmental and safety issues to an unbelievable 97 – 98% and have held this level of compliance consistently. To put this in perspective, we target approximately 85% to be the average compliance score for a new facility prior to getting started with KPA. Both Group 1 and Penske Automotive Group are not only reaching high level of compliance across one store, they are doing it for all stores, across all States. Essentially, Group 1 and Penske have managed their compliance program to virtually spot free facilities in less than one year. This once more shows that all it requires is discipline and diligence to recognize and mitigate every hazard.
Tags: OSHA, workplace injuries
Posted in Environmental, Health, OSHA, Safety |
February 3rd, 2010 by Kathryn Carlson
Investigation and enforcement is the Department of Labor’s focus in 2010. Despite an overall reduction of $300 million in discretionary spending, the Department of Labor will ask Congress for an increase in workplace enforcement funding of $67 million, or 4 percent, according to the budget it released on Monday, February 1.
In an online video statement and Q&A, Secretary of Labor Hilda Solis emphasized department funding for investigation and enforcement along with training programs. The agency request for fiscal year 2011, which begins October 1, 2010, totals $117 billion. Secretary Solis indicated that the $1.7 billion allocated in the DOL budget for worker protection programs would allow the agency to restore staffing to 2001 levels. Of the 350 employees that the department expects to add over the next fiscal year, 177 are investigators and other enforcement staff.
For instance, the Wage and Hour Division would receive $244 million in funding, a $20 million increase, and hire 90 new investigators. The Occupational Safety and Health Administration would get $573 million, an increase of about $14 million. OSHA will add 25 new inspectors in 2011 and reallocate 35 to enforcement from a program that helps businesses comply with safety laws.
“We need to decide whether we will spend our limited resources on supporting those companies who really ‘get it,’ who are doing a great job at protecting their employees,” Solis said. “Or do we spend our scarce resources on companies that disregard workplace safety and allow workers to die in situations that could easily have been prevented?”
The department also indicated that it is going to crack down on employers that define workers as independent contractors rather than employees. Critics say the move allows companies to pay lower wages and benefits. As part of a joint initiative with the Department of Treasury, the DOL budget includes $25 million to target “misclassification” and hire 100 additional enforcement personnel.
Are your HR and OHSA programs in compliance? If not you might want to think about improvements before one of the new investigators comes knocking at your door.
Join the conversation- do you agree with the emphasis on investigation and enforcement?
Tags: Department of Labor, Enforcement, HR compliance, Investigation, IRS, OSHA
Posted in Department of Labor, HR, OSHA |
February 1st, 2010 by Kathryn Carlson
Employment litigation and high dollar settlements are on the rise in dealerships. With the past 60 days alone a dealerships Colorado paid over$ 1.5M , an Ohio dealership paid over $80,000 and a dealership in Georgia will pay $140,000 to settle claims of race, age and gender discrimination. Consider taking these four simple steps to ensure your dealership is not next in line to pay a high cost employment litigation settlement.
1) Understand the law and your responsibilities as an employer. KPA offers free webinars on employment law and best practices presented by leading attorneys and HR professionals .
2) Establish legally appropriate policies and training for all employees. Make sure you keep complete and accurate record.
3) Invest in HR Management software to automate and force compliance in the hiring, employee management and termination process.
4) Purchase EPLI (Employment Practices Litigation Insurance) coverage for your dealership.
Tags: compliance tip of the month, Department of Labor, HR best practice, litigation
Posted in HR, Tip of the month |
