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West Virginia Auto Dealership Learns Expensive Lesson in ADA Compliance and Meaning of Reasonable Accomodations

Tuesday, December 20th, 2011

A West Virginia auto dealership learned a very expensive, $56,000 plus legal fees, lesson in ADA compliance this month.  The dealership settled a federal disability discrimination lawsuit filed by the U.S. Equal  Employment Opportunity Commission (EEOC) on December  16, 2011.  The EEOC had charged that Jim Robinson Ford-Lincoln-Mercury  unlawfully refused to accommodate the disability of a salesperson and then fired  him.

The EEOC charged that Jim Robinson  Ford fired Bryan Perry because of his disability, a leg condition that affected  his ability to walk, after denying him a reasonable accommodation. Such alleged conduct violates the Americans  with Disabilities Act (ADA).

In addition to the $56,000 in  monetary relief paid to Perry, the three-year consent decree resolving the  lawsuit enjoins Jim Robinson Ford from engaging in any further employment  practice that discriminates based on disability or retaliation. In addition, the decree mandates that the  company will adopt certain procedures and training to enable it to accurately  assess whether disabled employees can perform the essential functions of their  jobs and to identify reasonable accommodations that will assist disabled  employees, according to the EEOC press release.

Under the ADA, if an employer is asked to provide reasonable accommodations to a disabled employee the employee must establish what are truly essential and what are non-essential functions of the job.  This requirement is just one of the many reasons why it is so important for a company to have accurate and complete job description for each position.  Employers are also required to make reasonable accommodations with the intent being to balance good process practices, monetary concerns and the requirements of the job.  The ADA does not provide a specific definition of what is a reasonable accommodation since what is a considered reasonable will depend on the facts and circumstances of a particular situation. Reasonable accommodation may include modifying work schedules, making physical changes to the work site or equipment, adjusting supervisory methods, modifying a workplace policy, restructuring a job, providing a job coach, and/or reassigning an employee to a vacant position for which (s)he is qualified.  Reasonable accommodation does not require lowering performance standards or removing essential functions of the individual’s job.

Director Spencer H. Lewis, Jr., of the EEOC’s Philadelphia  District Office, commented “The  employer must then work to identify a reasonable accommodation for the  employee’s disability. Earnest, interactive  communication with the employee, viewing the purpose of the job and its  functions realistically, and carefully researching and considering options for reasonable  accommodation of the disability are all keys to ADA compliance.”

In  Fiscal Year 2011, the EEOC received a record 99,947 private-sector workplace  discrimination charges, the highest number of charges in the agency’s 46-year  history.

Further  information about this case is available at http://www.eeoc.gov/eeoc/newsroom/release/12-16-11.cfm

To download a free template to create job descriptions go to http://www.kpaonline.com/what-we-do/hr/hr-resources/whitepapers.html

 

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Posted in DOL, Employee Relations, HR: Industry Updates, Human Resources Management | 1 Comment »

Pros and Cons of Using Credit Reports for Hiring Decisions

Thursday, December 8th, 2011

Background checking (including a drug test) is an important step in the hiring process. Background checking is more about the knowledge you gain to make the right hiring decision rather than “exclusion” based on the results. Employers need to be aware of the legal restriction of using certain information in the hiring process. For example in many states you should not be ordering or using the results of a credit report except in very limited circumstance. This short video discusses the pros and cons of credit reports in the hiring process.

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Holiday Party Safety Primer

Tuesday, December 6th, 2011

Holiday parties are a long standing tradition in the workplace. The challenge is to balance the making merry with the keeping safe.   Use these tips to keep employees safe, limit company liability and make sure everyone has a good time.

  1. Avoid any religious ties to holiday parties. A “Christmas Party” may appear insensitive to some employee; however, throwing a generic holiday party should everyone feels comfortable.
  2. Make the party optional.  This is a fun event, a benefit not a chore.  If employees do not want to attend don’t mandate it.
  3.  Size the event to economic conditions. If you have just had a round of layoffs or haven’t provided raises in over a year, consider the message that an extravagant holiday party will send – a simple celebration may be a better option.
  4. Limit or don’t serve alcohol at all. If no behavior altering substances are available to your employees, or if you limit their access to it, chances are employees will be calmer and more in control of their actions. In addition to averting injuries, limiting alcohol consumption could prevent other types of actionable activities, such as property damage and sexual harassment incidents.
  5. If you are going to serve alcohol, check your insurance policy. A key step in your party planning should be reviewing your business insurance policy. If you’re going to be serving alcohol, the Independent Insurance Agents of America, Inc. (IIAA), based in Alexandria, Virginia, suggests checking your comprehensive general liability policy to be certain that it covers third-party liquor liability.
  6. Don’t think a cash bar solves your liability problem. While having a cash bar or a ticket system instead of an open bar may limit drink consumption, be careful. Having your employees and guests pay for the alcohol they consume on your property does not automatically limit your liability if an alcohol related accident should occur. According to the IIAA, if you’re charging for alcohol, you’ll need a liquor license and other liability protections.
  7. Plan an off-premises party so if you decide to serve alcohol at your party, don’t hold the party in your office. Have the party off premises and make sure the servers have a liquor license. That way you transfer the obligation to the provider of the liquor.
  8. Plan a non-traditional get-together such as a group outing to a basketball or football game, and the focus will not be on drinking, but on the g event. Other alternative party ideas from the U.S. Department of Labor include an amusement park outing, or a volunteer activity, such as a 10K run or bake sale, with proceeds going to a local charity.
  9. Hold a family friendly party and take the focus off the typical “sit and drink” party by inviting your employees’ spouses and children to the gathering. Plan activities for the children; perhaps hire a musician or storyteller. A family friendly party also reinforces the company commitment to work/life balance.
  10. Be clear with your employees before the festivities begin.
    Make sure that your employees know your policy on substance abuse and that this policy covers any work situation, including an office party, suggests the U.S. Department of Labor. Post the policy in your employee handbook and on office bulletin boards, and send it out by email as a reminder before the party. HotlinkHR makes it easy to post policies and handbooks online and collect employee signatures.
  11. Provide transportation and keep your employees from getting behind the wheel of a car if they’ve been drinking by providing alternative transportation, both to and from the party.

The goal is to not make like Scrooge but rather ensure that everyone has fun while being safe.

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Federal Judge Rules in Favor of Business on Meal and Break Laws

Friday, November 18th, 2011

In the latest ruling on meal and break laws, a federal judge in the Southern District of California ruled in Favor of Penske Logistics. According to this decision, meals and rest breaks are not covered under wage laws. That means that meal and break laws for the transportation industry as defined by individual states are superseded by FAAA laws, requiring that a state:

“may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … or any motor private carrier, broker, or freight forwarded with respect to the transportation of property.”

Employer’s Bottom Line:

This court’s decision is encouraging for California employers who fit within the definition of “motor carriers.” However, it is too early to tell whether it may be relied upon because it is likely that the order will be reviewed on appeal.

 

You can read more about the case at our partner’s page:

http://www.fordharrison.com/shownews.aspx?show=7703

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Let’s Make Every Day “Hire a Veteran Day”

Friday, November 11th, 2011

Today is Veterans Day.  Make today more meaningful by committing your company  to proactively recruit and hire veterans throughout the year. Our veterans have a higher than the already unacceptably high rate of unemployment or are under employed, although they have the proven commitment, skills and training to make a positive impact on the private sector workplace.  Tax credits of $5600 to $9600 will soon be available to companies that hire veterans.  This is truly a case where employers can do well by doing good. The Veterans Job Bank can connect veteran job seekers and employers, learn more at https://www.nationalresourcedirectory.gov/home/veterans_job_bank .

Thank you to all our veterans and to our active duty military personnel for your service to our country.

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Sexual Harassment Is No Joke

Friday, November 4th, 2011

Sexual harassment continues to be  a very costly issue in the workplace.   The most recent high-profile incidents involve presidential candidate Herman Cain.  While  CEO of the National Restaurant Association, Cain was accused of harassment and the association provided monetary settlements to several women.   Mr. Cain remarked that “I do have a sense of humor, and some people have a problem with that,”  after the harassment allegations first surfaced, explaining how his actions may have been misconstrued.   All kidding aside, sexual harassment is no joke.  Resolving sexual harassment claims is expensive. Beyond attorney fees and settlement costs, harassment impacts morale and productivity, damages your company’s brand and reputation and limits your ability to hire and retain employees.

It is more cost-effective to take a proactive approach and prevent sexual harassment rather than settle claims.  Watch this 3 minutue video to learn the three steps every business should be taking to prevent sexual harassment in the workplace.

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Posted in Employee Relations, HR: Industry Updates, Human Resources Management | 2 Comments »

NLRB Delays NLRA Employee Rights Notice Posting Requirement Until January 31, 2011

Tuesday, October 11th, 2011

The National Labor Relations Board  has pushed back the requirement to post a notice advising employees of their rights under the National Labor Relations Act from November 14, 2011 until January 31, 2012. A number of trade and industry groups have challenged the posting requirements include NADA.
The NLRB website states “as of January 31, 2012, most private sector employers are required to post a notice advising employees of their rights under the National Labor Relations Act. The 11-by-17-inch notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. View the final rule in the Federal Register.”

 

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Firing for a Facebook Post? Maybe Yes, Maybe No

Wednesday, October 5th, 2011

An NLRB administrative law judge has ruled that a Chicago-area luxury car dealership did not violate federal labor law when it terminated a salesman who posted pictures and  comments about an accident on his Facebook page. The judge rejected the NLRB’s argument that the termination was motivated by other Facebook postings by the employee related to a customer  event  that mocked the quality of the food and beverages provided.

KPA’s partner law firm Ford & Harrison represented the dealership.  Frequent guest speaker at KPA’s  webinars Jim Hendricks, was the attorney of record.  A full review of the case is  available at http://www.fordharrison.com/shownews.aspx?Show=764

When firing for  a Facebook post what many private sector employers do not realize is that – employee may engage in “protective concerted” activity”  under the National Labor Relations Act (NLRA) .  Facebook posts and the subsequent “wall” posting and comments  and other social media  communications can be protected concerted activity within the meaning of Section 7 of the NLRA.

While the firing of the sales person was upheld in Chicago,  in another case involving Facebook posts the firing were deemed illegal.  In a case a case called Hispanics United of Buffalo, administrative law judge Arthur Amchan said HUB violated the National Labor Relations Act when it fired five employees who commiserated about their jobs on Facebook. Judge Amchan’s ruling endorsed the NLRB’s stance that employees are protected from retribution for job-related postings.

So can you fire for a Facebook post?

According to Jim Hendricks “Employers, especially non-union employers, must be mindful of the concept of protected concerted activity before taking adverse action against an employee. Also, employer policies and practices need to keep pace with emerging technology, including social media. This remains a largely uncharted area of the law. If one of your employees publishes something offensive or confidential on Facebook, Twitter, or YouTube, proceed with caution before taking action.employer policies and practices need to keep pace with emerging technology, including social media. This remains a largely uncharted area of the law. If one of your employees publishes something offensive or confidential on Facebook, Twitter, or YouTube, proceed with caution before taking action.”

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E-Verify Self Check Now Available in Spanish

Wednesday, September 21st, 2011

Effective August 15, 2011, the United States Citizenship and Immigration Services (USCIS) launched the Spanish version of the E-Verify Self Check accessible in twenty-two states (the English version was launched in March, 2011 and was only accessible in six states). Self Check is a voluntary service that allows individuals to input their personal information into the E-Verify database, which will confirm employment status by cross-checking the Department of Homeland Security (DHS) and Social Security Administration (SSA) records. If a mismatch occurs, the system will provide information for how to correct the mismatch. For further information, please go to the USCIS website at www.uscis.gov.

Tamara Lischer, KPA HR Client Advocate discusses the pros and cons of the E-Verify system including why USCIS has developed the employee “self check” feature.

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Love Contracts and Anti-Harassment Policies

Thursday, September 15th, 2011

What exactly is a “love contract” and what role does it play in protecting your organization from harassment and discrimination lawsuits? Watch this short video to learn more as the HR Client Advocates at KPA discuss the pros and cons of “love contracts”. With more than 50 years of combined HR management experience, Tamara Lischer, Michele McMann and Kathryn Carlson provide you with practical HR advice and insight into the latest HR trends and practices.
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