June 2015, Page 2 Archive

Thirty percent of all charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) are related to workplace harassment, that translates to significant risk for your organization. Our free sample policy was written by Littler, the world’s largest and most trusted employment law firm, to help you ensure that your bases are covered. Whether you’re evaluating your current policy or you’re implementing a policy for the first time, our resource will help safeguard your organization. Put this valuable resource to work in your organization today!

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This powerful guide motivates you to reach quality prospects, leverage new and current contacts, prompt ongoing referrals, and ultimately, boost your client base and bottom line.

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In a world focused on high tech networking, Darrell Gurney shows how old-fashioned yet innovative high touch wins hearts, minds, and opportunities for the savvy job seeker or career expansionist. Drawing on basic principles of human psychology, Gurney shows readers how to open doors to influential players in their fields of interest to gain top-of-mind awareness and top-drawer connectedness. Through 10 simple and easy-to-follow principles, Gurney teaches readers how to create powerful relationships with anyone, anywhere, for lifetime career management.

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When an employee is no longer able to perform his or her essential job functions due to a disability, do you have to reassign that employee to a new position for which he or she’s qualified — ahead of better-qualified employees? 

The answer: Yes.

The Seventh Circuit Court of Appeals has ruled:

“the ADA does indeed mandate that an employer assign employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer.”

Translation: If one of your disabled employees needs a transfer to keep working — and they’re qualified for one of your vacant positions — you’ve got to give the person the job. That is unless you can prove that offering that person the job over another potential candidate would amount to a unreasonable accommodation. But that argument would be difficult to make.

Employer to pay $1M

The ruling was made in a lawsuit the EEOC filed against United Airlines. The agency accused the airline of illegally requiring workers with disabilities to compete for vacant positions for which they were qualified. Such a policy violated the ADA, the EEOC claimed.

United argued the policy didn’t violate the ADA, and it won the case — initially.

But when the decision was reviewed by the Seventh Circuit Court of Appeals, it was overturned.

The Seventh Circuit ruled the requirement that disabled employees must compete for positions fell short of the ADA’s requirements to provide reasonable accommodations to those individuals.

United petitioned the Supreme Court to review the case, but the request was turned down. That means the appeals court ruling stood — and the EEOC could pursue its case and try to prove that United illegally denied disabled individuals reassignment.

But that case won’t be heard, because United as just decided to settle the lawsuit — to the tune of $1M, which will be paid to a class of former United employees with disabilities.

As part of the settlement, United also agreed to revise its reassignment policy to bring it into compliance with the ADA, train employees and managers on the policy changes, and provide reports to the EEOC on disabled individuals who are denied reassignment.

It’s reasonable to wonder if a one-eyed man could safely work on an oil rig. But wouldn’t almost 40 years on the job convince you he could?  

Apparently it didn’t convince the Houston-based Parker Drilling Company, which rescinded a job offer to Kevin McDowell after the company learned he was blind in his left eye. He hadn’t been able to see out of the eye since he was a child, and said he’d never found his monocular vision a hindrance during his career.

McDowell had enjoyed a successful 37-year career working various positions on oil rigs in Alaska.

Ironically, he began his career at Parker Drilling from 1978-1982. The firm provides worldwide drilling services, rental tools and project management, including rig design, construction and operations management for oil drilling operations.

And after offering him a junior rig manager job on the North Slope in late January 2010, Parker Drilling introduced McDowell as the “newest addition” to its management team. But just a few days later, the job offer was rescinded — the company said his monocular vision disqualified him for the position.

He asked for a re-evaluation from the company doctor, but “the doctor gave him short shrift and simply stated that McDowell could find work with some other drilling company but was not going to work for Parker Drilling,” according to the Equal Employment Opportunity Commission.

‘I am the oil fields’

You can guess what happened next. McDowell went to the EEOC and filed a complaint, charging Parker with violating the Americans with Disabilities Act. And the agency filed suit against the drilling company.

After an eight-day trial, a federal jury returned a verdict in favor of McDowell, who described his career in the oil fields during trial testimony. “I am the oil fields,” he said at one point.

The jury awarded McDowell $15,000 in compensatory damages for emotional pain and distress — and the judge tacked on $230,619 in back pay.

That’s a $245,000 tab — all for an arbitrary decision that flies against common sense.

More incentive to review your drug policies: the percentage of U.S. workers testing positive for illicit substances such as marijuana, cocaine and methamphetamine have increased for the second consecutive year. 

That’s the news from Quest Diagnostics, a national clinical laboratory. Quest’s Drug Testing Index (DTI) shows that the positivity rate for approximately 6.6 million urine drug tests in the general U.S. workforce increased overall by 9.3%, to 4.7% in 2014 compared to 4.3% in 2013. 2013 was the first year since 2003 in which the overall positivity rate increased for urine drug tests.

The results suggest a potential reversal in the decades’ long decline in the abuse of illicit drugs in the U.S. workforce, Quest said, noting that overall positivity for oral fluid and hair drug tests, representing approximately 1.1 million tests, also increased between 2013 and 2014.

Marijuana still leads the pack

Marijuana continues to be the most commonly detected illicit drug, Quest said. Marijuana positivity in the general U.S. workforce increased 14.3% (2.4% in 2014 vs. 2.1% in 2013). By comparison, marijuana positivity in the same workforce category increased 5% between 2012 and 2013. In the safety-sensitive workforce, marijuana positivity increased 6% (0.71% vs. 0.67%) between 2013 and 2014, compared to 5.6% between 2012 and 2013.

Quest researchers also analyzed urine drug test data from two states with recreational marijuana-use laws. In Colorado and Washington, the marijuana positivity rate increased 14% (2.62% vs. 2.30%) and 16% (2.75% vs. 2.38%), respectively, between 2013 and 2014, roughly parallel to the national average of 14.3%.

As you’re well aware, conflicting pot laws have made it difficult for employers to know just where they can go with anti-marijuana policies. The American College of Occupational and Environmental Medicine and the American Association of Occupational Health Nurses just published a report, “Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers,” to help guide policymakers through the maze of new regs,

Cocaine, meth up, too

The research also showed steady increases in workplace positivity for cocaineover the past two years, reversing a prolonged period of decline. The positivity rate for cocaine in urine tests increased by 9.1% (0.24% vs. 0.22%) between 2013 and 2014. Urine drug tests account for the vast majority of cocaine drug tests. The positivity rate also increased in oral fluid and hair specimens, by 30.6% and 13.0%, respectively, year over year.

Urine drug tests showed a 7.2% year-over-year increase in amphetamines positivity in 2014 compared to 2013 (1.04% vs. 0.97%). Methamphetamine positivity in urine drug tests increased 21.4% (0.17% vs. 0.14%); the positivity rate for oral fluid methamphetamine tests increased 37.5% (0.33% vs. 0.24%). Across all specimen types, the positivity rate for amphetamines is now at its highest levels on record and the positivity rate for methamphetamine is at its highest level since 2007.

What can managers do?

So there’s a look at the grim numbers. What should managers do when they suspect an employee is using drugs?

Here’s a checklist:

• Look for the signs
• Document, document, document
• Get professional advice
• Approach the person, but not as an enforcer, and
• Present the plan and do what you can to implement it.

For a fuller look at the overall strategy, refer to our earlier post on the subject.

Being a benefit plan fiduciary is a tricky role to play nowadays. Here’s some guidance you may want to share with your C-level folks.  

Between the Supreme Court’s recent ruling in Tibble v. Edison and the increased interest from the feds, fiduciary responsibility is a critical issue for employers everywhere. That’s why it’s so important to have a comprehensive compliance strategy in place.

At the 2015 Mid-Sized Retirement & Healthcare Plan Management Conference in San Diego, Ian S. Kopelman, a partner with the DLA Piper US LLP law firm, offered a simple, 15-step process employers of all stripes can take to ensure they’re fulfilling their fiduciary responsibilities:

Shortcuts to safety

Here are Kopelman’s “15 Shortcuts to Fiduciary Compliance”:

1. Prudence is paramount. As Kopelman put it, you don’t have to be right, you only have to be prudent, and prudence is a process. Employers must have a prudent process in place for evaluating their fiduciary duties — and apply that process consistently. Remember, according to ERISA’s prudent man rule:

…[a] fiduciary shall discharge his duties with respect to a plan … with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.

2. Plan operation rules should be in writing â€” and shouldn’t be overly complex. Fiduciaries must comply with all of these rules of operations or they become the guarantor.
3. Each fiduciary’s responsibilities should be clearly defined. Kopelman reminds firms that plan fiduciary responsibilities should be “discrete” and everyone should know exactly what is and isn’t expected of him or her.
4. Know your plan documents. After all, these are the documents that ultimately govern the fiduciary actions of your plan.
5. Settlor functions are a good thing. Because settlor functions — e.g., decisions regarding the establishment, amendment or termination of a plan — generally aren’t subject to ERISA’s fiduciary rules, Kopelman says the more, the better.
6. Service agreements should be in place for every outside vendor. These service agreements should spell out the vendor’s obligations and indemnify each fiduciary as well as the company for violations the vendor makes.
7. Delegate carefully. Under ERISA, any delegation of investment authority should only be passed on to a “qualified investment manager.”
8. Meet on a regular basis. Fiduciaries should meet periodically to discuss the plan decisions, and minutes of those meetings should be kept. Kopelman, however, cautions against being too detailed when it comes to documenting those minutes.
9. Let the third party make the initial call. If fees are being billed to the plan, let a third party make the initial recommendation about whether billing the plan for a particular fee is appropriate.
10. Ensure execs and employees understand their fiduciary capacities. When fiduciaries are also corporate officers or employees, it needs to be clear to both them and third parties when these fiduciaries are/aren’t operating within their fiduciary capacities.
11. Know what your paying â€” and what your service provider is getting. According to Kopelman, fiduciaries should try to know all the fees being received by third parties if the plan is paying all or part of those fees. After all, fiduciaries can’t conclude they are getting exactly what they pay for without this information.
12. Don’t make conflicted decisions. If a fiduciary is conflicted, he or she shouldn’t make the decision regarding the plan. Kopelman says each plan fiduciary should understand his or her rights and obligations to withdraw from any plan decision where there is a conflict.
13. Review the share class of your plan’s investment fund periodically. As Kopelman pointed out, not doing so resulted in major problems for the company in Tibble v. Edison.
14. Review your service provider’s performance. Revisit the decision to select/retain service providers for the plan as well as the time of the request for proposals (RFPs) that were made.
15. Go over your service provider’s communications. Fiduciaries need to review the direct communications service providers have with plan participants because, if anything is lacking or inaccurate, the fiduciaries are ultimately responsible.