Sample Workplace Harassment & Bullying Policy

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!

Click here to learn more!  

For more HR News, please visit: Sample Workplace Harassment & Bullying Policy

Source: News from HR Morning

Never Apply for a Job Again! $14.99 eBook, FREE for a limited time!

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.

Click here to learn more!  

For more HR News, please visit: Never Apply for a Job Again! .99 eBook, FREE for a limited time!

Source: News from HR Morning

Can you fire medical marijuana users? A definitive answer, finally

Can you fire medical marijuana users? A definitive answer, finally

drug policy, medical marijuana

It’s about time. Employers have finally been given pretty definitive guidance on how they can enforce their workplace drug policies in the wake of marijuana-friendly changes to state laws. 

The Colorado Supreme Court just ruled that federal law supersedes state law — and employers have the right to enforce their policies according to federal law.

Translation: Employers can terminate those who test positive for marijuana on-the-job, even if they smoked pot off-the-job in accordance with their state law.

This is precedent that would likely hold up in states besides Colorado as well.

Currently, more than 20 states allow medical marijuana use, and four states have legalized the drug’s recreational use for adults. The recent changes in states’ laws have left employers in the lurch when it comes to how to create and enforce workplace drug policies effectively.

But the Supreme Court of Colorado is saying employers have the right to create their own drug policies as they see fit.

The closely watched case of Mr. Coats

The question of whether or not employees who use pot legally can be fired for failing an employer’s drug test was brought before the court by Brandon Coats, a former phone operator for Dish Network.

Coats is a Denver native and registered medical marijuana user. He’s also a quadriplegic who uses pot in accordance with Colorado law to treat painful muscle spasms he suffers that stem from a car accident that left him paralyzed and wheelchair-bound.

In 2010, he tested positive for marijuana and was fired by Dish, which claimed that his use of pot, even if consumed legally off the job, violated the company’s zero-tolerance anti-drug policy.

Coats then sued Dish for wrongful termination, claiming Colorado law protects employees from being punished for engaging in lawful activities outside the workplace.

Colorado law says:

An employee cannot be terminated for reasons violating public policy. Examples include discharging an employee for: filing a worker’s compensation claim; bringing or threatening a lawsuit; serving on a jury; engaging in lawful off-duty activities; refusing to commit perjury; whistleblower situations, etc.

Two lower courts had already ruled against Coats, and the state’s highest court upheld those two previous rulings by a vote of 6-0.

Court: A violation of federal law isn’t protected

It ruled that federal law, which still classifies marijuana as an illegal narcotic, trumps Colorado’s statutes. Therefore, pot users aren’t protected by state law.

The exact ruling:

“The supreme court holds that under the plain language of section 24-34-402.5, 14 C.R.S. (2014), Colorado’s “lawful activities statute,” the term “lawful” refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”

Pretty clear — employees who violate your drug policies by smoking marijuana can be punished.

Granted, this ruling was made by the Colorado Supreme Court and not the federal Supreme Court, so there’s a chance that other states’ courts may not abide by this decision. But you can bet they’ll look at this as a pretty strong precedent — along with similar rulings handed down in California, Oregon, Montana and Washington.

Bottom line: Employers can feel more comfortable about enforcing their anti-drug policies than they have for the past few years.

It’s also worth noting that the Department of Justice has said it will not prosecute those with debilitating conditions who use medical marijuana in accordance with state laws.

A few outliers

While it stands to reason that other states would use the same reasoning as the Colorado Supreme Court, giving employers freedom to punish pot smokers who fail workplace drug tests, some states have broader employee protections — and how those protections jibe with federal law have yet to be fully flushed out in court.

Laws in Arizona, Delaware and Minnesota, for example, specifically state that employers generally cannot penalize patients for testing positive for marijuana. The saving grace for employers, however, is that each of those states allows employers to punish smokers who are impaired on the job.

(Note: This is an issue we dealt with in our breakdown of what makes an effective modern drug policy.)

Cite: Coats v. Dish Network

For more HR News, please visit: Can you fire medical marijuana users? A definitive answer, finally

Source: News from HR Morning

Disabled worker needs transfer: Can you make him compete for job opening?

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.

For more HR News, please visit: Disabled worker needs transfer: Can you make him compete for job opening?

Source: News from HR Morning

This might be the dumbest ADA violation you’ll ever read about

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.

For more HR News, please visit: This might be the dumbest ADA violation you’ll ever read about

Source: News from HR Morning

One unbelievable NLRB ruling: Racist comments protected

One unbelievable NLRB ruling: Racist comments protected

discrimination, lawsuit

This ruling’s going to scare the pants off a lot of employers — and it should.

An administrative law judge for the National Labor Relations Board (NLRB) just gave employees the green light to make racist comments to fellow workers — as long as they’re not accompanied by violent threats and the comments are made in connection with “concerted activity.”

Got a pretty thorough anti-harassment policy that prohibits any form of harassment based upon race, skin color or national origin?

Apparently, the NLRB doesn’t care.

What happened?

During union negotiations, the collective bargaining agreement the Cooper Tire plant in Findlay, OH, had with Local 207L expired.

As a result, Cooper locked its unionized employees out and began using temporary replacements until a new collective bargaining agreement could be hashed out.

The locked-out workers then picketed outside of the facility, often yelling some pretty unflattering things at the temporary workers — many of whom were African American — as they arrived at the facility.

But the vast majority of those remarks weren’t threatening or racist in nature — there was a lot of “scab” and “go back to where you came from” … things like that.

Then, Anthony Runion was caught on camera yelling racist comments at some of the temporary workers, including:

  • “Hey, did you bring enough KFC for everyone?” and
  • “Hey, anybody smell that? I smell fried chicken and watermelon.”

After seeing Runion make those comments on security tapes, which were recording the picketing activity, Cooper terminated Runion.

Cooper said Runion violated its anti-harassment policy, which prohibits harassment of workers based upon their race, color, religion sex, age or national origin.

The policy said, “[h]arassment consists of unwelcome comments or conduct relating to race, color, religion, sex, age or national origin, which fails to respect the dignity and feelings of any Cooper employee.”

Runion, when he was hired, signed a form acknowledging that he received a copy of the harassment policy and understood it.

Shortly after his termination, the union filed a grievance, alleging that Runion’s discharge violated the National Labor Relations Act (NLRA), which protects workers’ ability to participate in “concerted activities” for the purpose of altering the terms and conditions of their work.

An alarming ruling

Contrary to everything you’ve been taught — and likely every fiber of your being — as HR pros, the judge ruled the company’s harassment policy isn’t what should’ve taken precedence here.

He said the comments were clearly made within the context of union activities, so the NLRA should’ve been the guiding doctrine (we’re guessing the EEOC would’ve stated otherwise).

The judge did state that “serious acts of misconduct” during union activities can disqualify a person from protection from the NLRB, but that didn’t happen here.

What counts as a serious act of misconduct, you ask? Violence or verbal threats that would “coerce or intimidate employees.”

The judge ruled Runion’s comments weren’t violent or threatening, and therefore he didn’t lose protection under the NLRA.

Specifically, the judge said:

“… Runion’s conduct and statements did not tend to coerce or intimidate employees in the exercise of their rights under the Act, nor did they raise a reasonable likelihood of an imminent physical confrontation. Runion’s ‘KFC’ and ‘fried chicken and watermelon’ statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.”

Bottom line, according to the ruling: Runion’s actions were protected activity under the NLRA, and his termination was illegal.

Cooper is now forced to reinstate Runion with back pay and benefits.

What about the EEOC?

The NLRB has made some pretty unbelievable rulings recently in the name of protecting employees’ rights to participate in “concerted activity,” which the NLRB defines very broadly. But this ruling has to take the cake.

It’s actually condoning vile behavior at the work site — and takes more power out of the hands of HR to maintain order in the workplace.

What’s most concerning, however, is this ruling appears to fly in the face of everything the EEOC’s telling you to do — investigate and, if necessary, take action against employees who conduct racist behavior and create a hostile work environment.

Employers put in this position now have to ask themselves: Would I rather risk having the EEOC on my back or the NLRB?

The decision certainly seems to put employers in a lose/lose situation. If it were up to us, we’d probably do what Cooper did and dismiss Runion. Back pay and benefits certainly seems a lot lighter than the potential fallout from a racial discrimination/harassment case brought by the EEOC.

Cite: Cooper Tire & Rubber Co. and United Steel (PDF)

For more HR News, please visit: One unbelievable NLRB ruling: Racist comments protected

Source: News from HR Morning

Top 5 things talented millennials want from you [infographic]

Top 5 things talented millennials want from you [infographic]

Are you ready for the run on millennial talent? 

Jobs openings are hitting record highs, and twenty/thirtysomethings are at the top of employers’ wish lists.

Is your company offering what it takes to attract these in-demand workers — or keep the ones you already have on staff from job hopping?

Our friends at intHRactive can help you figure that out.

Recently, the HR experts at intHRactive dove into numerous studies to find out exactly what it is Millennials are looking for versus what they’re actually getting from employers.

In doing so, they debunked three big myths that are costing employers a chance to attract and retain these individuals.

They also created the following infographic, which spells out the top five things Millennials are looking for from their current and/or future employers.

Millennials at Work

Source: intHRactive

For more HR News, please visit: Top 5 things talented millennials want from you [infographic]

Source: News from HR Morning

Red flag for employers: Positive drug tests on the rise

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.

For more HR News, please visit: Red flag for employers: Positive drug tests on the rise

Source: News from HR Morning

Top 15 rules to keeping for benefits plans compliant

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.

  1. 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.
  2. 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.
  3. Know your plan documents. After all, these are the documents that ultimately govern the fiduciary actions of your plan.
  4. 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.
  5. 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.
  6. Delegate carefully. Under ERISA, any delegation of investment authority should only be passed on to a “qualified investment manager.”
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.

For more HR News, please visit: Top 15 rules to keeping for benefits plans compliant

Source: News from HR Morning