April 2015, Page 3 Archive

Let’s give this employer the benefit of the doubt and assume it was trying to do the right thing. Even if that was the case, its actions still appear to have violated the ADA. 

The company in question is Baldwin Supply Company, a Minneapolis-based distributor.

It employed Timothy Collins to install conveyor belts — until he had a heart attack.

According to the EEOC, a month after Collins’ heart attack, he was released by his doctor to resume work with no restrictions. Baldwin then only let Collins return for two days before terminating him.

Reading between the lines, one could surmise that Baldwin had the best of intentions in this case: trying to keep Collins from performing a job it felt could be detrimental to his health condition.

After all, installing conveyor belts sounds like taxing work — and may trigger another heart attack.

But whether or not he should return to work was a decision for Collins to make — not Baldwin, according to the EEOC.

ADA lawsuit filed

When the EEOC caught wind of Collins’ termination, it sued the employer on his behalf, alleging Baldwin violated the ADA.

The ADA protects employees from being discriminated against based on perceived disabilities. And assuming the EEOC’s telling of Collins’ story is accurate, it appears as though Baldwin did discriminate against him based on a disability the employer thought he had — even if it did so for Collins’ own good.

The EEOC’s lawsuit sought back pay, compensatory damages and punitive damages, as well as injunctive relief.

What it got was Baldwin agreeing to settle the lawsuit for $50,000 worth of monetary relief for Collins.

When good intentions go bad

This is a cautionary tale that even good intentions can pave the way for a costly lawsuit.

Even if Collins’ workload could’ve eventually led to another heart attack — a fear Baldwin would’ve been justified in having — the ADA prohibited the employer from taking action against him for any reason associated with his medical condition.

Bottom line: Without having some other nondiscriminatory reason to terminate Collins, his employer was obligated to abide by the doctor’s instructions to return Collins to his previous job (or an equivalent one) without restrictions.

For more HR News, please visit: Good intentions can cost you K under the ADA: Here’s how

Source: News from HR Morning

A health clinic in Florida has the dubious distinction of becoming the first employer to settle an EEOC claim of sex discrimination against a transgender employee.  

Lakeland Eye Clinic will pay $150,000 to settle one of the first two such lawsuits filed by the U.S. Equal Employment Opportunity Commission, the agency announced. A second, against Detroit-based R.G. & G.R. Harris Funeral Homes, remains unresolved.

The Lakeland case involved the clinic’s director of hearing services, identified as Brandi Branson in a Miami Herald story.

At the time of her hiring, the Globe said, Branson went by Michael and presented himself as male. About six months later, Branson started wearing make-up and women’s clothing to work. She noticed colleagues making fun of her and was eventually confronted about her changing appearance, according to the EEOC lawsuit.

Branson explained that she was transitioning from male to female and would be changing her name to Brandi. By April, only one physician was referring patients to Branson despite the fact that she’d been performing her job successfully, the lawsuit states.

In June 2011, the clinic fired Branson on the grounds that her position was being eliminated. That August, the clinic hired a replacement.

Branson filed a complaint with the EEOC, which subsequently charged the clinic took the action it did because Branson was transgender, transitioning from male to female, and because she did not conform to the employer’s gender-based stereotypes.

Along with the monetary settlement, Lakeland aagreed to implement a new gender discrimination policy and to provide training to its management and employees regarding transgender/gender stereotype discrimination.  The settlement was approved by the U.S. District Court in Tampa.

For more HR News, please visit: A first: Transgender sex bias case settled for 0K

Source: News from HR Morning

“April is the cruelest month,” T.S. Eliot said. And April 2015 is especially cruel — the National Labor Relations Board’s “ambush elections” rules went into effect.  

Since President Obama’s March 31 veto of a bill that would have blocked the implementation of the quickie election rules, this employer’s nightmare became a fait accompli. The rules became effective April 14.

Costangy Brooks attorney David Phippen recently put together a comprehensive document outlining what the new rules mean for employers (here’s a repost by Costangy’s esteemed blogger Robin Shea).

A small sampling of Phippen’s guidance:

Compressed time frame

Under the old rules, the time between the filing of an election petition and the election was about 42 days. But because the new rules compress the time between the various stages of union organizing — and the employer’s responsibilities in response to the organizing effort — that time frame is expected to squeeze down to about 13-21 days.

Notices and communication

The old rules did not require the employer to post a Notice of Petition after receiving it from the NLRB. Under the new rule, the employer must post the notice, and in some cases send it to all affected employees electronically, within two business days after receipt of the notice.

Prior to April 14, the NLRB required parties to use paper for petition filings and certain notifications. Under the new rule, electronic filings and communications will be the norm. Election petitions can be filed with the NLRB and served on the employer electronically.

Petition hearings

The old way: A pre-election hearing had to be scheduled within 14 days of the filing of the election petition. Under the new rule, the NLRB must schedule the hearing “for a date 8 days from the date of service [on the employer] of the notice” of hearing and the petition, “absent special circumstances.” The new rule does authorize a maximum of two, two-day extensions of the hearing date.

The old way: Parties were entitled to file post-hearing briefs within seven days of the pre-election hearing. Under the new rule, post-hearing briefs are allowed only in the discretion of the Regional Director. In other words, the “default” will be no post-hearing briefs — which will have the effect of cutting seven days from the period between the petition and the election.

Preliminary voter lists

This is a new wrinkle.  No later than noon on the last business day before the pre-election hearing, the employer must give the Board and union a list of the names, job classifications, work locations, and work shifts, of all employees in the petitioned-for unit. This requirement is expected to benefit unions by ensuring that they receive employee information at the earliest possible stage in the campaign, says Phippen.

Voter eligibility

Under the old rules, the employer could contest the eligibility of specific voters, and have those issues resolved, before the election was held. Under the new rule, the election may take place first, and any challenges may be resolved later.

That’s just a taste of what employers will be facing should they come up against a union organizing effort in the coming months and years. To read the NLRB’s official stance on union elections, go here.

For more HR News, please visit: They’re here: NLRB’s ‘quickie elections’ rules are now official

Source: News from HR Morning

While new technology initiatives are a regular part of the business landscape, more than 17 percent fail, sometimes generating large enough cost overruns as to put an organization’s future in jeopardy. Yet, even successful projects often fail to achieve the full range of intended benefits. In the case of a technology project seeking to hit its mark, from staying on budget to achieving the desired results, these failures can be traced back to shortcomings in how the human element of the project was managed. Effectively managing the transition can keep a technology initiative on track, help employees focus on the benefits of the new solution and support a positive rollout with lasting results.

Click here to learn more!  

For more HR News, please visit: Overcoming the 5 Roadblocks to Workforce Management Success

Source: News from HR Morning

Sure seems like a lot of underperforming employees who get axed try to extract revenge by suing their former employers for some lame reason — retaliation seems to be the charge du jour. So it’s good to see a case where common sense trumps stupidity.  

We refer to a recent appeals court decision out of Texas involving one Courtney Satterwhite, who worked in the City of Houston’s controller’s office.

Satterwhite and a co-worker, Harry Singh, were in a meeting when, Satterwhite claimed, Singh used the phrase “Heil Hitler.” (Singh claimed he said “You know, we’re not in Hitler court” — whatever that might mean.)

After the meeting, Satterwhite informed Singh that another city employee, Daniel Schein, was offended by Singh’s remarks.

Although Singh apologized to Schein and Schein declined to file a formal complaint, Satterwhite reported the incident to the deputy director of human resources, who reported it to the city’s chief deputy controller, Chris Brown. Brown verbally reprimanded Singh.

So. A minor workplace disagreement, disciplinary action taken, case closed, right? No way.

Retaliation charged

A few months later, Singh was promoted and now served as Satterwhite’s supervisor. Things did not go swimmingly.

Singh disciplined Satterwhite for a number of issues, including being absent from his desk for a long period of time and changing office procedures without notifying other employees. Satterwhite claimed he was being singled out for discipline because he had filed the “Heil Hitler” report with HR.

Eventually, Singh had enough. He recommended that, given Satterwhite’s disciplinary record, Satterwhite should be demoted. The city controller agreed, and Satterwhite was demoted two pay grades.

Satterwhite went to the EEOC and made a formal charge of unlawful retaliation. He then brought suit in federal court.

Two strikes, he’s out of luck

In the case’s first go-round, the federal district court ruled that the city had ample and reasonable grounds for demoting Satterwhite, so it was not retaliating for his report to HR.

But it’s the judge’s decision in appeals court that should warm the hearts of employers. Here it is, in relevant part:

No reasonable person would believe that the single “Heil Hitler” incident is actionable under Title VII. The Supreme Court has made clear that a court determines whether a work environment is hostile “by looking at all the circumstances, ’including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it nreasonably nterferes with an employee’s work performance.’” Furthermore, “isolated incidents (unless extremely serious)” do not amount to actionable conduct under Title VII.

Case cite: Satterwhite v. City of Houston.

For more HR News, please visit: Sanity prevails: Single remark can’t support a retaliation lawsuit

Source: News from HR Morning

You don’t get any points for how inventive you are when doing it. The bottom line is violating the FLSA’s going to cost you a pretty penny when the DOL finds out about it. 

Case in point: Honolulu-based M.H. Electric was just taken to task by DOL investigators for violating the overtime regulations of the FLSA in a rather inventive way.

Most of the time, employers who violate overtime law just flat out ignore the OT hours their employees put in. But not M.H.

According to the DOL, this employer “systematically “banked” those overtime hours at straight-time wage rates for future use … ”

Employees could then tap into those hours during weeks when they worked less than 40 hours.

Heck, you’ve got to give M.H. credit for at least trying to keep employees’ paychecks consistent. After all, nobody likes seeing a small check during those weeks when you’re a little short on work.

We’re kidding of course. This practice kept employees from earning time-and-a-half when they worked more than 40 hours in a single week — and that’s a big no-no.

When the DOL caught wind of this, it launched an investigation.

The agency determined M.H. violated the overtime standards of the FLSA and Contract Work Hours and Safety Standards Act at 10 federally funded construction projects awarded in Hawaii between 2012 and 2014 by the Hawaii Air National Guard and the U.S. Departments of the Navy, Army and Veterans Affairs.

As you can imagine, the feds didn’t look too kindly upon this. The employer must now pay $305K in back wages and damages to 65 workers.

For more HR News, please visit: Creative attempt to dodge FLSA costs employer 5K

Source: News from HR Morning

Ready to make an impression on a room full of people? Remember these four lessons from professional speakers:

1. Just seven seconds

Some folks think the average adult’s attention span is 30 minutes.

Nope, not even close. It’s only seven seconds.

Even though we can quickly refocus on the task at hand, our minds wander onto something else every few seconds.

Strategy: Pause before and after making a key point. Those cues clue your listeners to pay attention.

And give a brief example after a point so the listener creates an image in his or her mind.

Speakers who use examples get better results.

2. ‘What’s in it for me?’

Even the greatest speaker won’t hold your attention very long if the topic doesn’t matter to you.

Tell people up front why what you’re talking about matters and how it will benefit or affect them.

Do this even for required training. You must first know – and believe in – the purpose of your message so that others will buy in.

3. Cut the distractions

You don’t need cell phones going off when running a meeting, even a short one.

Ask listeners to please turn off devices first, in a friendly way.

4. Ask for questions

Don’t always assume people understand all your points. Remember:?They’re drifting off every seven seconds or so.

Effective communicators say, “Was that last point clear?” or “Would anyone like more info on something I said?”

Then answer any and all questions.

For more HR News, please visit: Presentations: You’ve got 7 seconds to pull ‘em in

Source: News from HR Morning

Your employer brand counts big time when attracting, influencing and retaining top talent. But what exactly is an “employer brand” and why is it so important to monitor it? Learn the secrets of building an employer brand that attracts top talent.

Click here to learn more!  

For more HR News, please visit: Employer Branding For Dummies, Glassdoor Special Edition

Source: News from HR Morning