Telecommuting ruling not all it’s cracked up to be for employers

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Telecommuting ruling not all it’s cracked up to be for employers

telecommuting, eeoc, ford

A district court just ruled Ford Motor Co. was right to deny a disabled employee’s ADA accommodation request to telecommute. But don’t pop any corks in celebration of the ruling that said “… regularly attending work on-site is essential to most jobs … “ just yet. 

While the ruling certainly is good news to employers who fear being dragged into court for denying a disabled worker’s request to work from home under the ADA, it’s far from a green light to deny such requests.

In fact, all this case does with any certainty — despite the seemingly one-sided ruling — is show just how hard it is to prove that on-site attendance is an essential function of someone’s job, which is the case you’ll have to make in court to show a worker’s accommodation request to telecommute is unreasonable.

Issues with her request

To fully understand why this ruling isn’t all it’s cracked up to be, we have to go back to the beginning.

Jane Harris worked for Ford as a resale steel buyer. Her job was to act as the intermediary between steel suppliers and plants.

Harris also suffered from irritable bowel syndrome. Her symptoms caused her to repeatedly show up to work late, leave early and miss work entirely on many occasions. Her attendance issues got worse as time went on, and in the latter years of her employment, she consistently received low performance ratings and criticism.

Eventually, Harris claimed her condition made it impossible for her to drive or leave her desk without soiling herself. So she requested that she be allowed to work from home as many as four days per week.

Ford had a few problems with her request:

  • It said her job was “interactive,” in that it required her to have face-to-face contact with suppliers and plant officials to keep up relations — therefore, in-person attendance was an essential function of her job, the company claimed
  • Her job required computer work that couldn’t easily be completed remotely, and
  • She had already been granted the ability to work from home up to two days per week and her performance under that arrangement had been substandard.

So Ford denied her telecommuting request, and she was eventually terminated for performance issues.

EEOC sues

Harris took her case to the EEOC, which sued on her behalf, claiming Ford discriminated against her on the basis of her disability. The agency claimed Harris’ telecommuting request was reasonable and should’ve been granted.

Ford fought the suit and, originally, a district court sided with the automaker. It dismissed the EEOC’s case on summary judgment, ruling it shouldn’t go to trial.

But, on appeal, a three-judge panel of the Sixth Circuit court reversed the decision and said her case should go to trial. It said that as technology has advanced, so have remote work arrangements. As a result, the court said, “… attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location.“

This ruling sent shock waves through the employer community, as it seemed to suggest that telecommuting would be a reasonable accommodation under most work arrangements.

Court rehears case

Shortly after the appeals court ruling, the full panel of Sixth Circuit judges agreed to vacate the decision and rehear the case en banc (meaning, in front of all the judges of the court).

In an 8-5 decision, the panel sided with Ford and dismissed the EEOC’s case on summary judgment.

It said Ford acted reasonably in denying Harris’ telecommuting request. While it acknowledged that there have been great advancements in technology, which could make telecommuting easier, those advancements didn’t prove that Harris’ job could be performed at home.

It said Harris only provided “unsupported testimony” that she could perform her job at home, and that wasn’t enough to create the “genuine dispute of fact” needed to send a case to trial.

The court also acknowledged that Harris’ poor performance ratings under the two-day telecommuting arrangement helped support Ford’s case that she couldn’t perform her job remotely.

But perhaps the most compelling statement the court made is this:

“We do not write on a clean slate. Much ink has been spilled establishing a general rule that, with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise.’ … And for good reason: ‘most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.’”

“That general rule — that regularly attending work on-site is essential to most jobs, especially the interactive ones — aligns with the text of the ADA.”

Hold the celebration

That certainly seems to be a powerful statement — one that suggests it’ll now be easier for employers to make the argument that on-site attendance is an essential function of most jobs.

But pump the brakes.

There are two things employers should be careful not to overlook about this case:

  • This was by no means a slam dunk victory for Ford. An appeals court did rule that the EEOC’s case should proceed to trial, before the court’s full panel of judges swooped in to save the employer — and even then five judges dissented letting Ford win summary judgment, and
  • The EEOC has, time after time, demonstrated it doesn’t consider itself bound to past court decisions like this one. Translation: If it feels you’ve wronged a disabled individual, and it believes it can milk some cash out of you and make an example of you, it’ll sue.

Bottom line: It appears no matter the circumstance, it’s still going to be hard to prove that in-person attendance is an essential function of any job. So it’s going to be tough to defend denying disabled individuals the ability to telecommute on those grounds.

Steps employers should take

So if you’re an employer in Ford’s shoes — and want to be able to deny a person’s request to telecommute — what should you do?

The best advice we’ve come across is from labor and employment law attorney Eric. B. Meyer of the firm Dilworth Paxon LLP.

In his blog, The Employer Handbook, Meyer suggests employers:

  • Make sure your written job descriptions spell out when attendance is an essential function. Then provide copies of those descriptions to employees when they’re hired — and perhaps get employees to sign off on them.
  • Make sure managers understand and abide by the job descriptions. If a manager starts to let telecommuting slide, it’s going to be hard to prove in-office attendance is an essential function.
  • Analyze all accommodation requests on their own merits. There’s no one-size-fits-all formula to treating employees’ accommodation requests. You’ve got to enter the interactive process for each request — and keep the dialogue open with employees — in an attempt to seek out reasonable accommodations.

Cite: EEOC v. Ford Motor Co.



For more HR News, please visit: Telecommuting ruling not all it’s cracked up to be for employers

Source: News from HR Morning

Good intentions can cost you $50K under the ADA: Here’s how

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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

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A first: Transgender sex bias case settled for $150K

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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

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They’re here: NLRB’s ‘quickie elections’ rules are now official

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“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

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Overcoming the 5 Roadblocks to Workforce Management Success

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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

6 bizarre interview questions employers actually admit to asking

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6 bizarre interview questions employers actually admit to asking

interviewing

The survey masters at CareerBuilder have done it again — this time getting hiring and HR managers to admit to some off-the-wall questions they’ve thrown at candidates. 

CareerBuilder’s survey team, which works with Harris Poll, has gotten employees and employers to admit to some pretty strange stuff over the years.

Now it’s starting spring off with a bang, releasing a list of the some of the most bizarre interview questions respondents to its latest survey admitted to asking.

Without further ado, they are (along with the reasons they were asked):

  1. How would you wrangle a herd of cats? A hiring manager asked this to gain insight into a candidate’s ability to organize, lead and motivate others.
  2. Do you believe in life on other planets? This was asked to see if a candidate was the type to believe anything is possible.
  3. What superpower would you like to have? This was asked to provide insight into how candidates view their own strengths and weaknesses.
  4. If you were stranded on an island, which two items would you like to have with you? This question could provide insight into candidates’ abilities to weather a tough situation with limited resources.
  5. If you did not have to work, what would you do?” This question was asked to peek into a candidate’s values and interests outside of work, which can help assess how well they’d fit into the company’s culture.
  6. If you were trapped in a blender, what would you do to get out? You may remember this question from The Internship, starring Vince Vaughn and Owen Wilson. It helps assess a candidate’s creativity, ability to think on his or her feet, and problem-solving skills.

This new survey didn’t stop there. It also dug into how many hiring and HR managers are asking questions during interviews that are actually illegal — and it revealed something shocking: 20% of them have asked a question during an interview only to later find out it was illegal. Yikes!

Didn’t know these were off limits

What kinds of questions might these be?

According to CareerBuilder, “… when asked if they knew if these questions were illegal [they are!], at least one third of employers indicated they didn’t know.”

They are:

  • What is your religious affiliation?
  • Are you pregnant?
  • What is your political affiliation?
  • What is your race, color or ethnicity?
  • How old are you?
  • Are you disabled?
  • Are you married?
  • Do you have children or plan to?
  • Are you in debt?
  • Do you drink or smoke socially?

In addition, many survey takers weren’t sure about the legality of asking these questions, which may seem OK, but can be discriminatory in nature as well:

  • When do you plan to retire? Asking about candidates’ long-term goals is fine, but asking when they plan to retire isn’t.
  • Where do you live? Asking where candidates live can be interpreted as a way to discriminate based on their location. But asking them if they are willing to relocate is fine.
  • Why were you discharged from the military? You can’t ask why someone was discharged from the military. But you can ask about the education, training or work experience they received while in the military.
  • Are you a U.S. citizen? While it’s fine to ask if someone is legally eligible for employment in the U.S.,asking about their citizenship or national origin is another matter entirely.

The survey generated 2,100 responses from hiring and HR managers nationwide.

Want more?

If you’re interested in even more bonkers interview questions that employers have asked, check out our breakdown of a 2014 survey conducted by the career site Glassdoor, entitled “The year’s 25 strangest interview questions.”

Some of the other gems we’ve covered from CareerBuilder include:



For more HR News, please visit: 6 bizarre interview questions employers actually admit to asking

Source: News from HR Morning

Sanity prevails: Single remark can’t support a retaliation lawsuit

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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

Creative attempt to dodge FLSA costs employer $305K

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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

Presentations: You’ve got 7 seconds to pull ‘em in

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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

Employer Branding For Dummies, Glassdoor Special Edition

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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