Top Trending HR & Talent Management Resources for Spring 2015 brings together the latest in information, coverage of important developments, and expert commentary to help with your HR and Talent Management related decisions.
For more HR News, please visit: Top Trending HR & Talent Management Resources for Spring 2015
Source: News from HR Morning
Here’s more disappointing proof that employees (or rather, ex-employees) will sue you for just about anything these days. The more disturbing fact: Sometimes, seemingly ridiculous lawsuits are found to have merit.
Thankfully for this employer, however, this was not one of those lawsuits.
But it still forced the employer, Gregg Appliances Inc (a.k.a., hhgregg) to assemble its legal team and mount a defense.
Christopher Lucas, was about to be promoted to general manager at the electronics and home appliance retailer.
The only things standing in his way were a drug test and his paruresis (shy bladder syndrome).
hhgregg’s drug policy was very clear on a few key points:
Lucas knew he had trouble urinating in public restrooms and at work. He’d frequently go an entire work day without voiding his bladder. Still, he made no mention of this prior to showing up to take the drug test.
When Lucas arrived at the testing clinic, he entered an unoccupied restroom and shut the door. He was in the restroom for five minutes and failed to produce a urine sample. He then told the clinic’s technician he had a shy bladder.
The technician then gave him 16oz of water, and he attempted to urinate again an hour and a half later. Again, he failed to produce a sample.
The technician said he was allowed to wait a while longer and then try again, but Lucas refused and said he was leaving the clinic.
The technician then said that would be considered a refusal to take the test. Lucas left anyway.
Lucas then spoke to his direct supervisor, and explained that he was unable to produce a urine sample at the clinic. What he failed to mention to the supervisor, or anyone else at hhgregg for that matter, was that he’d had trouble urinating in public facilities in the past.
The next day, Lucas was fired.
Upon hearing of his termination, Lucas finally spoke up and informed hhgregg that he’d been dealing with shy bladder syndrome for years.
And here’s the kicker: The first time Lucas ever saw a doctor about his condition was the day after his termination (he said he didn’t think his symptoms were serious enough to consult a physician any earlier).
The doctor did, indeed, find that he suffered from shy bladder syndrome, but it was too late. His termination stood.
Lucas then sued hhgregg, claiming his termination violated the ADA. He said the company illegally fired him as a result of his disability. He also claimed hhgregg should’ve accommodated his condition by allowing him to take the drug test by another means — i.e. allowing him to produce a hair or blood sample.
The company tried to get his case thrown out on summary judgment, arguing it never knew about his condition until after he was fired. Plus, because it never knew about his disability it was under no obligation to look for an accommodation.
The court swiftly agreed with hhgregg.
It said:
“[E]xisting case law makes clear that an employee cannot be considered to have been fired `on the basis of disability’ unless the individual decision-maker who fired the individual had knowledge of that disability.”
It then went on to say that because hhgregg had no knowledge of Lucas’ disability prior to making the decision to terminate his employment, there was no way the decision to terminate him could’ve been influenced by his disability.
The court also made it clear that when a disability is not obvious — as was the case with Lucas — the burden is on the employee to make the employer aware. The same is true of accommodations; the burden falls on employees to request them.
Lucas not only made no attempt to inform hhgregg of his disability prior to his termination, he hadn’t even seen a doctor about his condition until after he was fired.
Case closed.
Cite: Lucas v. Gregg Appliances Inc.
For more HR News, please visit: âWe didnât know he was disabled: Do we have to accommodate him?â
Source: News from HR Morning
Is the latest change to the FMLA taking affect in your state?
Not if you’re in Arkansas, Louisiana, Nebraska or Texas.
As you’ve probably heard by now (we reported it in February), the DOL just updated the definition of âspouseâ for FMLA purposes to reflect the Supreme Courtâs ruling in United States. v. Windsor.
It did this via a rule change that essentially said any eligible employee who’s in a legal same-sex marriage can take federal FMLA leave to care for his or her spouse, regardless of the state in which that employee resides.
Now, however, this rule won’t apply to those living in the four states mentioned above — at least for the time being.
As we reported a few weeks ago, a federal judge in Texas preliminarily enjoined the implementation of the rule after the attorneys general of Texas, Arkansas, Nebraska and Louisiana filed suit, claiming the rule violated statesâ rights.
Well, the DOL has just responded to the injunction — and it’s likely going to make life difficult for employers with multi-state operations.
The DOL announced it’ll enforce the new rule in every state except those four.
At the same time, the DOL made a motion for the U.S. District Court for the Northern District of Texas to reconsider the injunction. The result? The court just denied the DOL’s request, so the injunction will stand — at least until the states’ lawsuit is resolved.
Many observers seem to think the Texas decision could well be moot, since the Supreme Court will hear several same-sex marriage cases this term â and likely rule that federal law requires the states to recognize those unions.
Stay tuned.
Cite: State of Texas v. United States of America
For more HR News, please visit: FMLA compliance keeps getting trickier: 46 states get new rule
Source: News from HR Morning
The Equal Employment Opportunity Commission’s been busy. Here’s a look at just three of the numerous cases it’s won — or settled — in the past few days.
A federal appeals court in Memphis upheld a jury verdict of over $1.5 million in the EEOC’s lawsuit against a High Point, N.C.-based logistics services provider for sexual harassment and retaliation.
According to the EEOC’s suit, New Breed Logistics unlawfully discriminated against three female workers in its Memphis warehouse who were sexually harassed by a New Breed supervisor, and retaliated against them after they objected to his sexual advances. The EEOC also charged that a New Breed supervisor retaliated against a male employee who verbally opposed the supervisor’s sexual harassment and supported the women’s complaints.
Two years ago, a federal district court jury found in favor of the EEOC, and awarded the discrimination victims $1,513,094. The U.S. Sixth Circuit Court of Appeals upheld the jury finding.
New Breed Logistics, a logistics services provider that helps companies design and operate supply chains, warehousing and distribution, operates five Memphis warehouses. The company also has warehouses in Atlanta, Chicago, Dallas, Texas, Los Angeles and Kearny, N.J.
Patterson-UTI Drilling Company LLC, a Snyder, Texas-based multistate oil drilling company, will pay $14.5 million and furnish other relief to settle a lawsuit filed by the EEOC and to resolve several cases through separate conciliation agreements, the agency announced.
The EEOC charged the company with race and national origin discrimination, harassment and retaliation at its facilities throughout the country.
The EEOC’s lawsuit charged that since at least 2006, Patterson-UTI engaged in a nationwide pattern or practice of discrimination based on race and national origin on its drilling rigs, including assigning minorities to the lowest level jobs, failing to train and promote minorities, and disciplining and demoting minority employees disproportionately.
The EEOC also claimed that Patterson-UTI tolerated a hostile work environment on its rigs. Among other things, the EEOC claimed that these employees endured frequent and pervasive barrages of racial and ethnic slurs, jokes, and comments, as well as verbal and physical harassment and intimidation of minority employees.
The EEOC added that employees who opposed or complained about discriminatory practices suffered retaliation, including discriminatory discipline and discharge.
The settlement requires Patterson-UTI to put $12,260,000 into a settlement fund for distribution to the class of discrimination victims, thatâs not the full extent of the tab. Related charges filed with the EEOC resulted in separate out-of-court conciliation agreements with the Commission. When combining the money from the decree and the conciliation settlement agreements, the monetary relief for the victims totals $14.5 million.
Unit Drilling Company, a nationwide oil drilling company, will pay $400,000 and furnish other relief to settle a systemic sex discrimination lawsuit filed by the EEOC.
According to the EEOC’s suit, when women applied for jobs at Unit Drilling, they were told that the company did not hire women. Rejected female applicants testified that they were told by Unit employees that the company did not hire women because it only had “man camps,” that women were “too pretty” and that their presence would “distract the men,” the EEOC said.
Under a federal court decree, Unit Drilling will pay $400,000 to five women whom, the EEOC alleged, Unit Drilling refused to hire because they are women. In addition, Unit Drilling will change its policies, provide training against sex discrimination, post anti-discrimination notices, and provide detailed hiring information to the EEOC, which will monitor Unit Drilling’s compliance with the decree.
Unit Drilling Company is a wholly owned subsidiary of Unit Corporation and owns drilling rigs all over the country. The company operates approximately 90 onshore drilling rigs in the Anadarko and Arkoma Basins, the Rocky Mountains, and the Texas and Louisiana Gulf Coast.
A full rundown of all of EEOC’s recent settlements can be found on the agency’s web page.
For more HR News, please visit: EEOC rakes in the dough for sex and race bias, retaliation violations
Source: News from HR Morning
Here’s something disturbing: Resent research shows employees value this singular, no-cost perk more than even health insurance — yet, in the vast majority of cases, they aren’t getting it. What is it?
Answer: “Open communication.”
Eighty-one percent of employees said they’d rather join a company that values “open communication” to one that offers great benefits — like health insurance, free food and gym memberships, according to a survey by 15Five, a web-based communication software maker.
There’s just one problem: Employers, and managers in particular, are failing workers in this area.
Just 15% of the more than 1,000 workers surveyed said they were “very satisfied” with the quality of communication within their organizations.
The shortcoming appears to start with their managers — as only 15% of employees said they believe their managers “highly valued” their feedback, and 58% said their managers valued their feedback only moderately, slightly or not at all.
Some other knocks against managers:
Respondents said having a manager check in with them for five minutes each week is extremely important. In other words, employees don’t want to feel like they’re working on an island.
Survey respondents seemed to offer a possible solution to this communication issue, although you’ll want to take their suggestion with a grain of salt, as this is the portion of the survey that appears to be entirely self-serving for 15Five.
According to the results, about 70% said they’d be more likely to share info with their managers, thus opening up the lines of communication, if they could enter comments into a feedback platform that managers could then access.
Plus, 60% said an online Q&A platform would make it easier to communicate with team members of a different generation.
Besides a lack of listening from their managers, employees said generational gaps are also a big roadblock to communication.
The survey pointed out the specific communication faults owned by every generational group in today’s workforce:
Survey respondents said companies could improve communication by addressing these generational faults.
For more HR News, please visit: 85% of managers are failing your employees in this critical area
Source: News from HR Morning
The definition of disability — the kind employers have to make an effort to accommodate — just keeps getting wider and wider.
A recent federal appeals court has ruled that “social anxiety disorder” falls into the category of conditions that interfere with a major life activity. Here’s a look at the case.
In January 2009, Christina Jacobs was hired by Court Clerk Brenda Tucker as an office assistant in the criminal division of the North Carolina Administrative Office of the Courts (AOC).
As an office assistant, Jacobsâs job duties included microfilming and filing.
Less than a month after Jacobs started working, Tucker promoted her to the position of deputy clerk.
At the time of Jacobsâs employment, 30 total deputy clerks worked in the criminal division. Four or five of the deputy clerks provided customer service at the divisionâs front counter.
The remaining deputy clerks performed other filing and record-keeping tasks, many of which do not require face-to-face interaction with the public.
Jacobs began training to work at the front counter. She was assigned to work four days a week at the front counter and one day a week microfilming.
Jacobs soon began to experience extreme stress, nervousness, and panic attacks while working at the front counter.
She became particularly panicked when she was asked a question to which she did not immediately know the answer — a common occurrence when working behind the counter.
She attributed these symptoms to her previously diagnosed social anxiety disorder.
On or about May 5, 2009, Jacobs went to a supervisor, Debra Excell, and told Excell that she had social anxiety disorder and was not feeling healthy while working at the front counter.
Jacobs told Excell that she had received treatment including medication) for mental health issues while in college, but that she was not currently under a doctorâs care.
Excell encouraged Jacobs to seek treatment from the doctor who had helped her in college. After her meeting with Excell, Jacobs went to a doctor and began receiving treatment for anxiety and depression.
Excell subsequently told Tucker about her conversation with Jacobs. Tucker took handwritten notes on Excellâs oral account of her conversation with Jacobs, which included the phrases âtoo stressful,â ânerve issues,â âanxiety disorder,â and âmight have to go back to [the doctor].â Tuckerâs assistant placed the notes in Jacobsâs personnel file.
On September 8, 2009, Jacobs sent an e-mail to her three immediate supervisors (Excell, Jan Kennedy, and Melissa Griffin) in which she disclosed her disability for a second time and requested an accommodation.
Specifically, Jacobs requested that she be âtrained to fill a different role in the clerkâs office and perhaps work at the front counter only once a week.â
The next day, Jacobs followed up in person with Kennedy. Kennedy told Jacobs that only Tucker had the power to act on Jacobsâs request and, because Tucker was currently on a three-week vacation, Jacobs would have to wait until Tucker returned.
Soon after her meeting with Kennedy, Jacobs forwarded her e-mail request to Tucker. While she was waiting for Tucker to return and address her accommodation request, Jacobs sought to use some accrued leave.
Kennedy questioned Jacobs about why she wanted leave and denied her request. Jacobsâs previous leave requests were not questioned and had always been approved.
Upon returning to the office, Tucker called Jacobs into her office for a meeting. Excell, Kennedy, and Griffin were already in Tuckerâs office when Jacobs arrived, where they had just concluded a meeting regarding Jacobs.
Jacobs also saw a copy of her e-mail requesting an accommodation on Tuckerâs desk, annotated in someoneâs handwriting. Tucker later testified that she had written the notes on the e-mail printout.
Jacobs assumed that the meeting was about her request for an accommodation. Instead, she was fired.
Tucker told Jacobs that she was being fired because she was not âgetting itâ and Tucker did not âhave any place [that she could] use [Jacobsâs] services.â
When Jacobs asked Tucker whether she was being fired âbecause of the e-mail,â Tucker responded that âit doesnât have anything to do with the e-mail.â
Jacobs complained to the EEOC and later filed suit against the AOC, claiming disability discrimination. A lower federal court ruled in favor of the agency, saying “social anxiety disorder” didn’t qualify as a disabling condition.
But the appeals court disagreed. It referenced the the Diagnostic and Statistical Manual of Mental Disorders, which describes social anxiety disorder as a condition that âinterferes significantly with the personâs normal routine, occupational . . . functioning, or social activities or relationshipsâ — in other words, major life activities.
The judge pointed out that the employer had absolutely no documentation of Jacobs’ alleged performance problems. What’s more, the court said, the employer had failed to enter into any kind of discussion exploring possible accommodation for Jacob’s condition.
So the case now goes back to district court, where the employer faces an expensive, lengthy trial or an expensive settlement.
Case cite: Jacobs. v. N.C. Administrative Office of the Courts.
For more HR News, please visit: âSocial anxiety disorderâ is qualifying condition under ADA: Court
Source: News from HR Morning
A U.S. district judge just levied one of the largest attorney fee penalties in American history for an individual discrimination charge against … Norway?
You read that right, Norway.
Ellen Ewald worked in the country’s Minneapolis consulate, and sued the government of Norway, alleging pay discrimination.
Ewald claimed she was paid about $30,000 less than a male employee doing comparable work, and U.S. District Judge Susan Nelson just ruled the government’s actions did, indeed, violate both the federal Equal Pay Act and Minnesota’s Human Rights Act.
Nelson then ordered Norway to $270,000 to Ewald — $100,000 for emotional distress and $170,000 for lost wages times two, according to Minneapolis’ Star Tribune.
But that’s only a fraction of what the lawsuit will actually cost Norway, as Nelson also ordered the government to pay $2.1M in attorney fees to pay for the time Ewald’s lawyers put into the case.
Ewald’s lead attorney claimed her legal team put more than 6,000 hours into the case, which involved poring over roughly 90,000 pages of documentation, some of which had to be translated into English, according to the Star Tribune.
Another attorney on the case said this ranks among the largest court-ordered attorney fee awards in an individual discrimination case in U.S. history.
Norway can still appeal, but if it loses, the government will have to shell out another $200,000 in interest.
For more HR News, please visit: Pay discrimination on U.S. soil to cost Norway .1M in attorney fees alone
Source: News from HR Morning
When it comes to keeping rising health costs at bay, employers essentially have three choices: change carriers, change coverage or change (i.e., increase) workersâ contributions.
Because the little guys are negotiating with small risk pools, theyâre hit especially hard by increases.
That means many small firms are left with little choice but to pass along more of the cost burden to employees. Here are morale-saving ways to do it:
Offering and partially funding tax-advantaged accounts like HSAs, HRAs and FSAs can go a long way toward helping workers with out-of-pocket costs and high deductibles.
But there are plenty of obstacles. Example: High-deductible plans coupled with HSAs and HRAs tend to go over well with high-earners.
Low-earners, however, tend to balk at fully funding tax-advantaged accounts, which can leave them in the lurch when a major medical event takes place.
To prevent this, show folks exactly how much they can save in taxes. Example: If you fully fund an FSA ($2,550 for â15) and spend that amount, youâre saving $800 or $900.
Creativity is another way to make cost-sharing more bearable for staff.
According to Roger Howell of Howell Benefit Services, there are plenty of non-traditional approaches to cost-sharing that can benefit both employers and employees, such as:
It’s been a long road to recovery, but the economy is finally bouncing back after the Great Recession. Businesses are growing, companies are hiring and quality talent is in high demand. For the skilled worker, the job market has shifted in their favor, and professionals everywhere are taking advantage. The findings of the fifth annual Job Seeker Nation Study explore the progression of the job market, the modern job seeker’s approach to job hunting, and what this means for the workforce in 2015.
For more HR News, please visit: 2015 Job Seeker Nation Study
Source: News from HR Morning
It took a while, but employers finally have some sold guidance on how to design their wellness program incentives so they don’t violate the ADA.
The EEOC has been promising for a while now to issue rules to clear up the confusion it’s created around what kinds of wellness incentives are legal — and when non-participation penalties become so steep as to render a program “involuntary” and, thus, illegal under the ADA.
Well, the EEOC has finally kept its promise, and its new proposed rules outline, in its words, “how Title I of the Americans with Disabilities Act (ADA) applies to employee wellness programs that are part of group health plans …” The regs will be published in the Federal Register on Monday.
But the EEOC did offer a sneak peek of the proposed rules on its website.
But before we get to them, here’s what got us to this point.
This past summer, the EEOC decided it was going to go after employer wellness programs it felt punished employees too harshly for not participating in wellness initiatives.
Example: In the first of three lawsuits the agency filed, it claimed Orion Energy Systems’ wellness program non-participation penalty for failing to complete a health risk assessment was so steep it rendered the program “involuntary.”
The ADA says a program can’t submit employees to medical inquiries that aren’t job-related and consistent with business necessity, unless those inquiries are part of a “voluntary” wellness program.
Orion charged employees who didn’t complete a health risk assessment their entire health plan premium, plus a $50 dollar non-participation penalty.
In the third lawsuit the EEOC filed, the one that’s gained the most prominence, it went after Honeywell International for slapping employees who didn’t submit to health screenings with a penalty worth roughly $4,000 in some cases. The EEOC felt this rendered Honeywell’s wellness program illegally “involuntary.”
Employers have been complaining that by filing these lawsuits, the EEOC has overstepped its bounds.
Their argument: The EEOC hasnât released any specific guidance as to what kinds of penalties would be so steep as to render a wellness program involuntary.
Some members of the GOP have even blasted the agency’s actions.
In some cases, employers and members of the GOP have said the EEOC’s actions fly in the face of the wellness regulations enacted by the Affordable Care Act, which state employers can offer wellness incentives/penalties as long as they donât exceed 30% of the value of an individualâs insurance premiums (50% if the incentives are tied to smoking cessation).
In response to these allegations, the EEOC promised to issue regulations clearing the air on what kinds of wellness program incentives are legal once and for all.
Employers that feared the new rules would be a tangled mess of confusing rules and exemptions (what federal law isn’t?) will likely be pleasantly surprised.
The rules appear to be pretty straightforward.
Here’s a rundown of the key points:
The public has until June 19, 2015 to comment on the proposed rules.
The EEOC will then evaluate all of the comments it receives and make revisions to the rules if deemed necessary. The agency will then vote on a final rule. After it’s approved, the final rule will be sent to the Office of Management and Budget and will be coordinated with other federal agencies before it is published in the Federal Register.
So it’ll likely be several months before the final rules are enacted.
It’s also unclear what effect, if any, the proposed rules will have on the wellness program lawsuits the agency’s filed against employers. We’ll keep you posted.
For more HR News, please visit: EEOC finally issues wellness rules: 8 things employers will want to know
Source: News from HR Morning
