February 2015, Page 3 Archive

What’s scarier, these discrimination claims or the number of zeros in the award? 

California-based trucking outfit Matheson Trucking and Matheson Flight Extenders Inc. is paying dearly for racial discrimination claims levied against the company by seven former employees.

A lawsuit filed by the men — six of whom are black — claims Matheson let some pretty horrific stuff go on in its warehouse, according to a report by The Denver Post.

Some of the lawsuit’s claims, according to The Post:

• White workers called black workers “lazy stupid Africans.”
• White employees and black employees worked on separate sides of the warehouse.
• White supervisors and workers often used the N-word around black workers.
• In one instance, a white worker yelled that all blacks should be shot (and that worker was later promoted).
• Calling a white worker, the seventh plaintiff, who stood up for his black co-workers, “the tribe’s assistant.”
• That same white worker was fired after he challenged the company’s racist practices.
• Black workers were passed over for desirable, double-pay holiday shifts, which were given to white workers with less seniority.

The lawsuit went on to say that the plaintiffs were discriminated against in all phases of employment — including hiring, promotion, vacation pay, discipline, wages, benefits and much more.

A federal jury awarded them nearly $15 million, and here’s how that broke down, according to The Post:

• $14 million in punitive damages
• $650,000 in emotional distress, and
• $318,000 in back pay.

And as if that wasn’t bad enough for the employer, it’s likely on the hook for the plaintiff’s attorney fees, too.

For more HR News, please visit: Yikes: Horrific discrimination claims cost company M

Source: News from HR Morning

There’s good news and there’s bad news regarding wellness programs. The good news: Workers do seem to have a keen interest in wellness. The bad: What they want could put employers in the feds’ crosshairs.  

These are some of the key findings from a recent study by HealthMine.

The study found that three-quarters of employees would engage more fully in a wellness plan that included incentive levels and rewards for achieving goals such as maintaining ideal weight, sticking to a drug regimen that addresses chronic diseases and not smoking.

Key measurements

Specifically, employees said that:

• Colleagues who are in a healthy weight range should be rewarded with a discount on their health insurance (67%)
• Colleagues who smoke tobacco should pay more for their health care (63%), and
• Colleagues who adhere to medication for chronic disease should be rewarded for it (52%).

The study also found that 71% of employees would like more health-management guidance from their employers.

Dangerous territory

Here’s the problem: The EEOC might well view these “goal-based incentives” as discriminating against particular groups of workers. (And that’s made a lot of employers skittish about using those tough benchmarks — in fact, less than a quarter of company wellness programs include incentives tied to measurable results, according to a recent Mercer study.

Of course, employers have every reason to be skeptical about relying too heavily on these results-based wellness incentives.

After all, as HR Benefits Alert has covered extensively, the EEOC has filed a number of high-profile lawsuits against employers because of their wellness programs.

And these lawsuits have drawn widespread criticism from both employers and benefit industry insiders because, even though the EEOC won’t spell out what types of wellness initiatives will get firms in trouble, it has no problem coming after firms when it sees something it doesn’t like.

So until we see some concrete guidance from the EEOC, many firms are likely to keep playing it safe and only offer basic wellness initiatives that offer rewards for simply participating.

For more HR News, please visit: Be careful of what employees wish for in your wellness programs

Source: News from HR Morning

At the end of the year, this is sure to be a leading candidate for Most Absurd Lawsuit of 2015. 

Maria Waltherr-Willard was a schoolteacher at Mariemont High School in Cincinnati. She primarily taught French, but she also taught an introductory Spanish class.

Back in 1997, Mariemont asked her to teach at the elementary school, but she didn’t accept the position because she suffered from pedophobia — a fear of children. She provided her school with a letter from her psychologist, which stated her “mental state … would disable her from teaching [children under 12].”

As a result, Mariemont allowed her to remain at the high school.

Fast forward more than a decade … Mariemont decided to move its French courses online, which meant the high school no longer needed a French teacher.

And since the majority of the Spanish classes already belonged to a fellow teacher, the school district’s superintendent — having taken Willard’s pedophobia into account — decided to transfer Willard to the middle school.

According to court documents:

“Willard did not object to the new assignment, and later expressed ‘enthusiasm’ for teaching middle schoolers.”

But six months into her new job, Willard began to have problems with the position. She said her talents were being “underutilized” and that another year would have “further detrimental impact on [her] health.”

(Note: Two years ago — when she first filed suit against the school district — she claimed dealing with seventh- and eighth-graders triggered her phobia and caused her blood pressure to soar.)

She requested a transfer back to the high school where she sought a position teaching Spanish. Citing that there were no openings she could fill at the high school, the district denied her transfer request and said her request would be kept on file.

Willard then retired, and sued under the ADA. She claimed the school district should’ve accommodated her disability by letting her go back to teaching at the high school.

Grasping at straws

By all accounts, it appears Willard was grasping at straws.

The school district tried to get her case tossed on summary judgment, and it was successful.

The court actually threw her ADA claims out without addressing the elephant in the room — the head-scratching notion that a teacher should receive an accommodation because she’s afraid of children (After all, isn’t being around children an essential part of the profession? But we digress).

In about 100 words, the court shot a big hole in her ADA claim:

The ADA requires an employer to accommodate a disabled employee, but it does not require unreasonable accommodations. … For example, an employer need not “create new jobs [or] displace existing employees.” … Here, Willard asked Mariemont to accommodate her pedophobia by employing her at the high school as a full-time Spanish teacher. But the high school already had one of those and did not need another. Thus, to accommodate Willard, Mariemont would have to create a new job at the high school or else displace the existing Spanish teacher… Willard’s claim therefore fails.”

That says it all: Since there wasn’t a position available for Willard at the high school, the district would have to create a new one to fulfill her transfer request, which qualifies as an undue hardship under the ADA.

Case closed.

Cite: Waltherr-Willard v. Mariemont City Schools

For more HR News, please visit: Teacher wants ADA accommodation … because she fears children

Source: News from HR Morning

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For more HR News, please visit: E-signatures and HR: How IT Can Help the Business Hire Talent Faster

Source: News from HR Morning

With a good portion of the country digging out from recent staggering snowfalls, it seems like a good time to review what rights and responsibilities employers have to employees who miss work because of inclement weather.

Rebecca Goldberg, writing on the Connecticut Labor and Employment Law blog, offers a pretty comprehensive look at snow day absences. Here’s a rundown of what she had to say:

Exempt employees

Since they’re paid on a salary basis, except in rare circumstances, a reduction in hours doesn’t change exempts’ pay.

If a business is closed for less than a week, the law requires that exempt workers be paid their full salaries. But the feds also say it’s permissible to require the employee to use vacation days or other PTO to cover their absence — but if the employee has no PTO time available, his or her salary can’t be reduced.

Caveat: State laws may vary on these issues, so it’ll pay to check with your company attorney.

So, OK. You can make exempts use up vacation time for snow days. But Goldberg cautions that “if an exempt employee performs any work during the day (whether onsite or from home), the employee must be paid for the whole day.”

Partial-day deductions from a paid time off bank are allowed, even for exempt employees.  So, if an exempt employee chooses to come in late due to road conditions, a portion of a day may be deducted from the employee’s paid time off bank — again, if the employee has PTO available. Partial-day deductions in pay aren’t allowed.

Non-exempt employees

As you well know, non-exempts are paid only for hours worked, so generally speaking, if the snowdrifts prevent them from getting to the workplace, they don’t get paid. Again, though, Goldberg offers a word of caution: “Some passive time, such as on-call time, is considered ‘hours worked,’ so it is possible some non-exempt employees will need to be compensated, even if they do not perform any actual work.”

Some state laws require some form of payment for non-exempt employees who report to work and are then sent home early.

In addition, employers should count these hours as “hours of service” for purposes of the Affordable Care Act.

Tips for employers

Here’s Goldberg’s general advice on handling employee pay issues that come with absences caused by the weather:

Many employers choose to pay all employees for the full day, without deducting from a paid time off bank, for administrative simplicity, employee morale, or other reasons.  (Of course, a collective bargaining agreement may limit these choices.)

Whether or not to close the worksite can be a difficult decision and may be influenced by road conditions, the length of employees’ commutes, the nature of the job, whether schools are closed, production requirements, whether telework is possible, employee morale, and the amount of pay at issue.

Unless the employee’s job is of a critical nature (think hospital employees), employers should avoid subjecting an employee to discipline or termination for failing to report to work if the employee feels the road conditions are unsafe.

Employers should communicate to employees beforehand how the employees will be notified of a worksite closure.  Small employers typically will call each employee at home or send an email, while larger employers may announce a closure through a radio station or company website.

Whatever you choose, make sure employees know whether they are expected to report to work.

For more HR News, please visit: Do your people have to be paid for ‘snow days’? Some guidelines

Source: News from HR Morning

If a data breach can occur at Anthem, a company that provides health coverage to one in every nine Americans, it can happen to any medical insurer. And a number of experts believe it’s only a matter of time before it does.  

By now, most HR pros have heard something about the data breach at Anthem that made national news.

More than 80 million members

According to reports, as many as 80 million current and former members may have had their medical and personal info compromised.

This info includes names, medical identification and Social Security numbers and other employment info.

Unlike many data breach victims that tend to find out about the incident via a third party (bank, credit-card company, etc.), Anthem uncovered the cyber attack on its own. When the breach was discovered, the insurer notified anyone who was potentially impacted including policyholders, members and business partners.

In a statement, Anthem’s President and CEO Joseph R. Swedish commented on the severity of the breach by stating:

Based on what we know now, there is no evidence that credit card or medical information, such as claims, test results or diagnostic codes were targeted or compromised.

Almost half of all major breaches

Although Anthem’s breach was more publicized than other cyber attacks on health data, it’s hardly an isolated incident.

In fact, healthcare organizations accounted for 42% of all major data breaches in 2014, according to the Identity Theft Resource Center.

And industry experts believe this will only get worse.

In fact, a 2014 warning from the FBI’s Cyber Division claimed that healthcare systems are at increased risk of a breach due to a transition to electronic records, loose cybersecurity standards and a higher payout on the black market for stolen medical records (this data can fetch between $100-$300 per record, compared to just 10-25 cents per compromised credit-card file).

What’s required of employers?

In light of the Anthem breach, now may be a good time to talk to your insurer about the safeguards it has in place for its medical data — and review any contracts and documents.

It’s also a good time for a refresher on what your obligations are in the event your insurer’s data is compromised.

The folks at Oagletree Deakins remind employers that plan type will determine how to react to the breach. For example:

• If your health plan is fully insured, your insurer is the covered entity responsible for investigating and taking appropriate mitigating measures as well as providing all required notices to those affected by the breach.
• If your plan is self-insured, the responsibility ultimately falls on you, as the plan sponsor. But when you outsource the claims administration role, the TPA may have the contractual obligation to assess/respond to the breach. At the very least, TPAs have a notice obligation to the plan/employer and a responsibility to provide details surrounding the breach.

For more HR News, please visit: Why HR should care about the recent Anthem data breach

Source: News from HR Morning

Do you have to accommodate individuals whose religious beliefs lead them to think their jobs will brand them with the “Mark of the Beast?” Is this something you even have to worry about? 

Let’s tackle the second question first: Apparently, discrimination lawsuits involving the “Mark of the Beast” — and accommodation requests to avoid it — aren’t all that uncommon.

Just recently, we brought you the case of Beverly Butcher, Jr., who worked at Consol Energy’s Robinson Run Mine.

Butcher feared the hand scanner Consol used to track workers’ hours would imprint him with the “Mark of the Beast.” As a result, he said using the scanner went against his religious beliefs and asked HR officials to seek alternative options for him.

Apparently, the manufacturer of the scanner had heard these accusations before and was ready with a letter it passed along to Consol, which then gave to Butcher. It said the scanners “do not in any way have the ability to detect … or place the ‘mark of the Beast’ or any other mark on a person’s hand.”

In the end, Consol denied his request for accommodations.

Butcher then took his case to the EEOC, which filed a religious discrimination suit on his behalf. A jury then awarded Butcher $150,000.

Bottom line: These cases do need to be taken seriously.

Accommodations can’t ask you to violate federal law

Now, on to the first question: Do you have to accommodate individuals whose religious beliefs lead them to think their jobs will brand them with the “Mark of the Beast?”

The result of Butcher’s lawsuit may have you leaning toward “yes.” But really, these cases should be treated no differently from other religious or disability accommodation requests.

Rather than focusing on whether the person’s religious belief or disability is serious enough to warrant an accommodation, focus instead on whether or not providing an accommodation would create an undue business-related hardship.

Recently, in a case that went against an individual with a “Mark of the Beast” claim, a court determined that an accommodation request that would conflict with federal law would create an undue business hardship — and, therefore, could be denied.

The case involved job candidate Donald Yeager and another energy firm, FirstEnergy Generation Corp.

Yeager had applied for a job at FirstEnergy, which then asked Yeager for his Social Security number.

At that point, Yeager informed FirstEnergy that he had no Social Security number because, as court documents point out, “he had disclaimed and disavowed it on account of his sincerely held religious beliefs.”

Yeager believed that being identified by any number was tantamount to having the “Mark of the Beast.”

Yeager then sued, claiming religious discrimination.

His case, however, was thrown out by a court before it could go to trial.

In dismissing his case the court said the Internal Revenue Code requires employers such as FirstEnergy to collect and provide the Social Security numbers of their employees, and that violating a federal statute would impose an undue hardship on FirstEnergy.

Focus on the hardship question

The difference between Butcher’s case and Yeager’s: Providing Butcher with another method of logging his work hours likely wouldn’t have created an undue hardship for Consol.

Meanwhile, there appeared to be no way of accommodating Yeager without violating a federal statute.

In neither case were the individual’s religious beliefs called into question by the courts, and employers can expect that to be the case in other courtrooms.

In all but perhaps the rarest of cases, courts will focus the majority of their attention on assessing whether or not what individuals are asking for would create undue business-related hardships.

Cite: EEOC v. Consol Energy Inc. & Yeager v. FirstEnergy Generation Corp.

For more HR News, please visit: ‘Mark of the Beast’ keeps popping up in lawsuits: Are accommodations required?

Source: News from HR Morning

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For more HR News, please visit: Cloud Time and Attendance: How a Modern Solution Helps You Unlock Employee Potential

Source: News from HR Morning