March 20, 2012 - Society for Human Resource Management



55626006477000068580060007500Fall/Winter 2012 Legal and Legislative UpdatesNovember 20, 2012Hello, SHRMA members! Please see below for Legislative Updates related to the HR Profession!ADA UpdatesRecently, in EEOC v. Ford Motor Company, the District Court in Michigan rejected the EEOC’s attempt to pursue allegations that the Defendant (Ford Motor Co.) failed to accommodate its employee in violation of ADA and then retaliated against the same employee for filing a charge with the EEOC.An employee at Ford took Medical Leave for irritable bowel syndrome and upon her return to work, she had performance issues such as chronic attendance issues, and work performance issues. Ford made multiple attempts to accommodate her such as early starts on Mondays, allowing her to work from home on an ad hoc basis, and allowing 2 telecommutes per week to name a few. The employee stated that Ford did not do enough to accommodate. The employee continues to show performance issues and Ford eventually ended up terminating the employee. The court denies the EEOC’s claim stating that the employee was “not otherwise qualified” (due to the performance issue) and the fact the Ford made every reasonable attempt to accommodate the employee. This serves as a strong reminder to the Commission that courts usually give employers difference in determining what reasonable accommodation for their employees is. There has been a record number of what is being called “Drive-By” Disability Access Lawsuits emerging against small businesses. They receive this name because they are brought upon by people who have no vested interest in patronizing the business in which they are suing. In these suits, they are alleging technical violations of the Title III of the Americans with Disabilities Act. In these suits, they ask the court to order the business the correct the problem, pay the plaintiff lawyer fees, and sometimes a monetary recovery amount. Businesses can defend themselves in many ways such as showing the plaintiff lacks standing to suit and keeping their facilities compliant. EEOC UpdatesEEOC lawyers are targeting sexual abuse of “vulnerable” employees in recent lawsuitsRecent lawsuits have focused on sexual harassment of farmworkers to make a point to employers. Two examples of cases include a female employee being verbally abused for years. The supervisor then fired the female employee and blames her for causing the husbands domestic abuse arrest. A second case involves a farm supervisor physically grabbing a female worker. This recent focus shows employers the importance of having a written “zero tolerance” policy regarding sexual harassment that needs to be rolled out to management and employees. 10 Tips for avoiding employment discrimination lawsuitsKnow the basics of anti-discrimination lawKnow who you hireHire a knowledgeable and experiences HR personMake sure that you have someone that you can turn to who can identify an employment discrimination issueDraft and maintain and up-to-date employment manualProvide periodic training programsKeep good and thorough record- document everything!Know where and who to go to register a complaintFollow the “golden rule”FMLAEmployer burned for not meeting the “Equivalent” position under FMLAUnder the FMLA, an employer must return an employee to the same or equivalent position upon return from the FMLA leave. The facts surrounding “Equivalent” position is certainly not black and white. According to the FMLA regulations, the definition of “Equivalent” position seems as though there is not a lot of wiggle room for employers. An example of this would be a computer teacher who went out on FMLA during maternity leave. She had complications during pregnancy that left her paralyzed and required a lengthy FMLA leave. Upon return, she found her position was backfilled permanently and she was then offered a classroom teacher position rather than her original computer teacher position. This case is currently in litigation, but the court did refuse to dismiss, noting that the classroom teacher position is NOT equivalent to the computer position. Tips for employers regarding “equivalent” position under FMLA:Avoid the temptation of replacing an employee permanentlyDocument how you determine the position in question are equivalentEnsure the new position is regarded highly by the employee returning from FMLA in regards to prestige, authority, and especially earning potentialLaborBoard’s recent decision in J.W. Marriott makes it more difficult for employers to control off-duty employee access to the workplace.The NLRB has historically operated under the Tri-County standard for how an employer lawfully may restrict access to its property by off duty employees. In the J.W. Marriott case, it was found that this standard was possibly discriminating against the employee stating that it “would reasonably lead employees to believe that their Section 7 activity in the interior areas of the hotel is prohibited without prior manager approval”. Employers are being forced to re asses their off duty access rules in order to ensure compliance with the NLRB. NLRB finds that employer lawfully fired employee over Facebook posts, but its courtesy policy violated the NLRAAn employee at Karl Knauz Motors was fired after posting several photos and comments on Facebook regarding incidents that happened at work. One of which was an accident and another incident included making negative comments/photos about a work related event. The employee filed a charge with the NLRB, claiming he was discharged for engaging in protected activity because his posts were made in an effort to improve working conditions. The NLRB found that the employee’s Facebook posts were not protected and the termination did not violate the Act. However, the NLRB DID find that the courtesy policy in the company’s handbook was unlawful. The company’s handbook had a rule that employees MUST engage in courteous behavior, which prohibited disrespectful behavior or language that damaged the company’s reputation. This shows that the NLRB will continue to scrutinize handbooks closely and reject any policy that could potentially be interpreted to prohibit protected concerted activity by employees.RegulatoryEmployers will need to use new FCRA forms by January 1Employers will be required to use updated forms as part of their background check process by the first of the year as responsibility for interpreting the FCRA transfers from the FTC to the newly created Consumer Financial Protection Bureau (CFPB). The primary changes to the form include that consumers can contact the CFPB or visit the website at learnmore to obtain information on their rights. One new form is “A Summary of Your Rights Under the Fair Credit Reporting Act”, which employers MUST provide to applicants or employees when they issue a pre-adverse action letter. Two other new forms include “Notice to Users of Consumer Reports: Obligations of Users Under the FCRA” which is a form that background check companies must provide to their customers (employers). Lastly, changes were made to the “Notice of Furnishers of Information: Obligations of Furnishers Under the FCRA” which is a form that is required in certain situations where re-investigations may occur due to a consumer disputing information. Willful failure to comply with these new requirements could result to statutory damages ($100-$1,000 per violation), attorney’s fees, and punitive damages.PA State Law IssuesMiscalculating eligibility for FMLA leave can be a costly mistakeTelling employees that they are eligible for FMLA when they are not could be a costly mistake for an employer. In Medley v Montgomery County, a nursing assistant worked fewer than the 1250 hours required to be eligible for FMLA. However, the employer told her she was eligible and had her fill out FMLA paperwork. Then after applying and taking intermittent leave to care for her son, she was written up for her absences. She was ultimately terminated for on of the absences she was thought to be covered by FMLA. She sued for FMLA interference and retaliation. The retaliation claim stuck because she could prove that she was treated adversely because she took FMLA leave. Employers need to be careful in explaining their LOA policies to employees and in calculating eligibility. Information obtained in the document has come from ConAgra Foods Labor and Employment Newsletter: Issue 30. ................
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