HR Morning News, Page 19 Category

Did this organization really think it could get away with this policy, which should immediately be enshrined in the Employer Policy Hall of Shame? 

United Bible Fellowship Ministries Inc., a Houston-based non-profit organization that provides housing and residential care to disabled clients, had a “no pregnancy in the workplace” policy.

That’s right … if you’re pregnant, you can’t work there. It prohibited the continued employment of any employee who became pregnant and prevented the employment of any pregnant applicant seeking a resource technician position, according to the EEOC, which sued the employer over the policy.

The policy came to the agency’s attention after United Bible fired Sharmira Johnson, a resource technician who provided care to United Bible residents, after she got pregnant. Johnson took her story to the EEOC.

The agency then sued in U.S. district court, claiming the policy violated Title VII of the Civil Right Act, after it tried to reach a pre-litigation settlement.

While admitting that Johnson had performed her job well and had no medical restrictions at the time she was terminated, United Bible said her firing was legal — arguing it ensured her safety, as well as that of her unborn child.

But whether or not the organization was looking out of their safety, basing a decision to terminate solely on an employee’s protected status (pregnancy, disability, age, race, gender, etc.) is illegal under federal law (as this case also pointed out).

The verdict

The court ruled that United Bible had “recklessly failed to comply with Title VII” and awarded Johnson $24,764 in back pay and overtime, as well as $50,000 in punitive damages, according to a statement by the EEOC.

The court went on to say that United Bible failed to show that all, or substantially all, pregnant women would be unable to safely and efficiently perform the duties of a resource technician, the EEOC said.

Adding insult to injury, the court pointed out that United Bible was under a funding contract with the Texas Department of Aging and Disability, which specifically required the organization to comply with all anti-discrimination laws.

Following the trial, EEOC Senior Trial Attorney Claudia Molina-Antanaitis, warned employers that they cannot “impose paternalistic and unsubstantiated views on the alleged dangers of pregnancy to exclude all pregnant women from employment.”

For two years, Jeffrey Angstadt used his personal, sick and vacation days and worked remotely to balance his work obligations and to care for his sick wife. And during that entire time, nobody told him he was eligible to take FMLA leave.  

According to the DOL, in 2010, Angstadt, a furniture sales executive, told his employer, Staples Contract and Commercial, Inc., that he needed to take leave to care for his critically ill wife. So he juggled this schedule, used vacation time and generally lived his life around the need to care for his sick wife.

But it was a struggle. In January 2012, his supervisors decided Angstadt wasn’t meeting his job responsibilities, and the company fired him. Angstadt found himself without an income and critical health benefits.

At some later point, Angstadt learned of his rights under FMLA, and complained to authorities.

Following an investigation, the DOL sued Staples in June 2013 for violating the FMLA by failing to inform Angstadt of his rights.

Angstadt’s wife died in 2014.

Final bill: $275k

Cut to the ending: As part of a recent settlement agreement, Staples Inc, will  pay Angstadt $137,500 in lost wages and benefits, plus an equal amount in liquidated damages. The agreement was reached in a consent decree approved by a federal court.

As a part of the settlement, the company will also promote an enterprise-wide policy for compliance with the FMLA by providing training for human resources and other managerial personnel with respect to FMLA notice and eligibility requirements; post FMLA enforcement posters in the workplace; and investigate and respond to complaints of potential FMLA violations concerning an employee’s notice of FMLA rights, including correcting violations when discovered.

“When an employee must be away from work to care for a loved one, there are no second chances to get it right,” said DOL Wage and Hour Division Administrator Dr. David Weil. “For more than 20 years, the Family and Medical Leave Act has been a critical safety net for working families. It ensures that no one should have to choose between the job they need and the family they love.”

You won’t believe the incredibly employee-friendly moves Wal-Mart announced this week (irony alert).  

Just listen to this — the retail giant said it’d not only adjust the temperature to make it more comfortable for employees in its stores across the U.S., it’s going to change store background music so workers don’t have to listen to so much Celine Dion, according to the New York Times and other Internet news outlets.

Just the reprieve from Celine Dion is a huge step forward, it seems to us.

A few words of explanation: First — this is amazing to us — the interior temperature of every Wal-Mart is controlled from the chain’s Bentonville, AR, headquarters. Bentonville’s temperatures are often different than other U.S. locations — which led to numerous complaints about other locations being too hot in the summer and too cold in the winter.

So in a stunning act of generosity, management agreed to adjust store temps by a whopping one degree.

That’s right: Stores in the eastern part of the country will go from 74 to 75 degrees; in the west, they’ll fall from 75 to 74.

Hope nobody gets sick because of that severe temperature swing.

‘Please, no more Celine’

Here’s the skinny on the music front: Each store has been allowed to choose its own music, which in some cases has amounted to a single CD, playing over and over. Apparently, Celine Dion and Justin Bieber were particular irritants to many employees.

Now the retailer will bring back an in-store broadcasting service called Walmart Radio, with a D.J. who broadcasts music to stores.

In other news, the retailer also eased the terms of its new dress code. Stockers and other back-of-store workers will be allowed to wear jeans and T-shirts. Service-oriented workers will be able to expand their choice of pants from khaki to black or khaki-colored denim.

Finally, Wal-Mart announced plans we can take a bit more seriously: The company said it would raise the starting hourly wage for more than 100,000 managers in the United States. That was the second wave of wage increases at Wal-Mart this year, after it announced in February that it would raise the pay for a half-million entry-level store workers.

Good timing

Perhaps it’s our suspicious nature, but the timing of these blockbuster changes seems significant. They were announced at a rally of Wal-Mart workers held two days before the retailer’s annual stockholder meetings.

Nah, we’re being too cynical.

The National Labor Relations Board’s “ambush election” rules are still in effect. At least for now.  

A federal district court in Texas rebuffed a business group’s challenge to the new rules. Associated Building Contractors of Texas had argued that the NLRB had abused its discretion and exceeded its authority by unilaterally issuing the rules, which would substantially limit the time frame under which union elections may be held.

But the judge upheld the merits of the new rules and said the Labor Board had acted within its jurisdiction.

The case is Associated Building Contractors of Texas, Inc. v. NLRB (link courtesy of Wolters Kluwer).

Another legal challenge to the rules is still pending in Washington, D.C.. The Associated Contractors case is likely to be appealed, and there’s a very good chance the issue will end up before the Supreme Court.

That’s going to be a while off, however, and in the meantime, employers are still stuck with the new rules.

Let’s review

Here’s a quick refresher course on the new rules, compiled a few months ago by Costangy Brooks attorney David Phippen:

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 â€” 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.

A new FAQ on Obamacare should have a lot of employers taking a close look at their 2016 health plans. 

In 2016, new out-of-pocket limits kick in for non-grandfathered health plans — the single coverage limit rises to $6,850, and the family coverage limit climbs to $13,700.

That much you probably knew, especially if you have a high-deductible health plan.

But here’s what you may not have known: That $6,850 limit will apply to every individual under your plan, regardless of whether a person is enrolled in family coverage or not.

That’s the word handed down from the DOL’s latest FAQ (No. 27) on Obamacare.

The ’embedded rule’

This has been dubbed the “embedded rule” (as in individual limits are embedded in family plans), and it applies to all non-grandfathered group health plans.

Here’s an example of how this rule applies:

Say you’ve got four individuals enrolled in family coverage under your non-grandfathered group health plan that has an out-of-pocket limit of $13,000. If one individual under that plan racks up $12,000 in medical expenses, they can only be held responsible for $6,850 of those charges, putting the plan on the hook for the remaining $5,150. That means the remaining individuals could still rack up $6,150 worth of out-of-pocket charges before reaching the plan limit of $13,000.

Under the old rules, the individual could’ve been held responsible for the entire $12,000 bill, soaking up all but $1,000 of the maximum out-of-pocket costs under the $13,000-capped plan. Not anymore. The maximum an employee could be made to pay under a non-grandfathered group health plan is $6,850 — period. It does not matter what kind of plan the person’s enrolled in or what the overall out-of-pocket limit for that plan is.

Only 17% are currently ready

As it stands, most employers’ plans aren’t yet in compliance with this rule, according to research by Aon Hewitt, which found that only 17% of firms currently have an embedded out-of-pocket limit in their high-deductible plans.

That’s going to have to change — and soon. The embedded rule kicks in for plan years that begin in or after 2016.

Employee turnover is expensive and can be catastrophic to morale and customer service quality. No one wants to see their top talent walk out the door. But how can you keep retention high at your company? We’ve put together a white paper with some stats and advice to help you increase your employee retention rates and keep employees (and customers) satisfied.

Click here to learn more!  

There are two main takeaways for employers from the Supreme Court’s ruling to allow the highly publicized religious discrimination case against Abercrombie & Fitch to gain new life. 

The takeaways are:

1. Employers can’t take an adverse action against an employee or job applicant when the motivation behind the action is to avoid having to accommodate one of the person’s religious practices. The Supreme Court ruled that employers have to explore possible religious accommodations when they have at least some idea that a person would require such an accommodation.
2. Employees and job applicants don’t need to explicitly state the need for a religious accommodation to trigger an employer’s obligation to seek out possible accommodations. Again, the High Court ruled all an employer needs is an inkling that a person would need a religious accommodation for that employer to then be required to consider accommodations.

Woman didn’t conform to ‘Look Policy’

The case involved Samantha Elauf, who applied for a job at the Abercrombie & Fitch clothing store in her hometown of Tulsa, OK.

Elauf wore a head scarf, known as a hijab, as part of her Muslim faith.

The company declined to hire her, claiming the scarf clashed with its “Look Policy” — or dress code — which banned head coverings.

The policy called for employees to have a “classic East Coast collegiate style.”

Elauf then filed a charge with the EEOC, alleging religious discrimination. The EEOC then filed a religious discrimination lawsuit against Abercrombie on her behalf.

The EEOC claimed the company refused to hire her due to her religion and illegally failed to accommodate her religious practice by creating a reasonable exception to its “Look Policy.”

In district court, the EEOC prevailed. It was awarded summary judgment and a jury awarded Elauf $20,000 in damages. The jury ruled that Abercrombie knew about her religious practice and refused to hire her as a result.

But Abercrombie prevailed in appeals court by claiming it didn’t have to relax its “Look Policy” because Elauf never asked it to do so — or even mentioned her religion. Abercrombie argued that Elauf needed to provide explicit, verbal notice of a conflict between the policy and her religious practice.

In siding with Abercrombie, the Tenth Circuit Court of Appeals vacated the earlier jury verdict.

The EEOC then asked the Supreme Court to hear its case, and the court agreed to.

‘Specific request not required’

In an 8-1 decision, the Supreme Court ruled in favor of the EEOC, saying Elauf was not required to make a specific request for a religious accommodation.

The court majority said there was enough evidence to show that Abercrombie knew she wore the head scarf as part of her religious practice and refused to hire her to avoid having to accommodate her religious practice.

As a result, the Tenth Circuit has been asked to rehear the case through the lens of the rational used by the Supreme Court.

The High Court’s ruling also stated that if an employer has an idea that an individual would need a religious accommodation, the employer is obligated to explore whether it could reasonably grant such an accommodation — and Abercrombie failed to do that.

Justice Clarence Thomas was the lone dissenter. He wrote in his opinion that Abercrombie’s “Look Policy,” on its face, was neutral — and, therefore, it couldn’t be used as a basis for a religious discrimination lawsuit.

Cite: EEOC v. Abercrombie & Fitch Stores Inc.

Does the EEOC have your email address? It’s going to want it. 

The reason: It’s converting to an all-digital complaint system. So, in the near future, employers will no longer receive paper notices when harassment or discrimination charges are filed against them.

Under the new system, dubbed the “Digital Charge System,” employers will be notified via email when an EEOC charge has been filed against them.

The email will contain a link to a secure online portal, through which employers can:

• view and download the charges against them
• review invitations to mediate and respond to charges
• submit legal representation info
• submit position statements, and
• otherwise communicate with the EEOC.

When?

The EEOC is currently in “Phase One” of its conversion to the digital system.

Currently, 11 of its 53 field offices are using the new system.

This includes:

• Charlotte, NC
• Denver
• Detroit
• Greensboro, NC
• Greenville, SC
• Indianapolis
• Norfolk, VA
• Phoenix
• Raleigh, NC
• Richmond, VA
• San Francisco

By October 2015, the EEOC expects all of its field offices to be using the new system.

If the EEOC doesn’t have your email address, it’ll mail a paper notice to inform you of any charges filed against you and provide instructions for logging into the portal.

What’s next?

Besides rolling the system out to the rest of its field offices, the EEOC also plans to also establish a secure portal for individuals who file a charge of employment discrimination.

Translation: It sounds like it’s about to get easier for employees to file charges with the EEOC and follow up on them.