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The U.S. Court of Appeals for the D.C. Circuit has found that an employer was required to reinstate an employee who the NLRB determined had been terminated unlawfully, despite his subsequent statements reflecting disloyalty to the employer. In Stephens Media, LLC v. NLRB, the employer appealed the NLRB determination that the employer, a newspaper publisher, violated the NLRA in connection with its termination of two employees.

One employee had been terminated after confronting a manager over the discipline of a co-worker for allowing a union representative onto the premises without management’s prior approval. After his discharge, the employee attended a public event at which he spoke critically about the employer, claiming that the employer failed to staff its newsroom adequately and that he had considered starting a rival newspaper.

In a separate incident, another employee was terminated after making a surreptitious recording of a meeting with management in which he expected to receive discipline but was denied the right to union representation.

With respect to the first employee, the D.C. Circuit upheld the Board’s determination that he engaged in “protected activity” when he confronted the manager over what he reasonably believed was the impermissible discipline of a bargaining unit employee (it did not matter whether he was correct in his belief). Despite the employer’s argument that the employee’s post-discharge comments showed blatant disloyalty, the Court held that his post-discharge comments did not absolve the employer of its obligation to reinstate the employee. The Court noted that where an employer seeks to avoid its obligations based on post-discharge conduct, the employer must demonstrate that the misconduct was so flagrant as to render the employee unfit for further service or a threat to efficiency at the plant. The Court found that the employee’s comments failed to meet this standard. With respect to the second employee, the Court deferred to the Board’s ruling that the surreptitious recording was protected activity because the employee reasonably believed that he was about to be disciplined and that the employer violated his right to have union representation. The Court noted that the company did not have a policy prohibiting audio recordings and that the recording was legal under state and local law.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

Editor’s note: if employers don’t get by now what the administration is up to when it comes to protecting disgruntled employees, cases such as this should be a resounding wake-up call! Do yourself a favor and watch our recent NLRB webinar.

Spring is in full swing — and a number of signs are indicating an increase in hiring of people with disabilities in both the Federal and private sectors. With Federal Executive Order 13548 – Increasing Federal Employment of Individuals with Disabilities and the potential changes for Federal contractors in the Office of Federal Contract Compliance Programs’ (OFCCP) Notice of Proposed Rulemaking (NPRM) for Section 503 of the Rehabilitation Act, employers would be wise to review their “onboarding” processes.

The purpose of this process is the smooth integration of new employees into their positions and company culture. If you already have an onboarding process, does your process consider reasonable accommodation issues for your new employees who might have a disability? It should. Take a look at your process and see if you need to incorporate these reasonable accommodation considerations.

A key to the success of any process, including the accommodation process, is education and training for those responsible for implementing it. Know who these players are in your organization. Who sets up a new employee’s workstation? Who provides access to the facility and parking? If a new hire with a disability needs an accommodation to be an effective member of your team, who will make sure the accommodation is in place for the individual’s first day of work? Key players will certainly include your human resources (HR) department, as well as managers and supervisors. Don’t forget to include staff from information technology (IT), facilities, and security departments in this training. Also, when conducting training, be sure to make everyone aware of the need and requirement to keep all medical information confidential.

Once your staff is educated about your company’s accommodation process for new hires, the next step is to make sure new hires know that they can and should ask for an accommodation if they know or think they might need one. Many individuals who know they need an accommodation to do the job successfully will choose to make an accommodation request. However, others might fear the job offer will be rescinded if they do so, and some might not be sure if they need an accommodation, or know how to request what they need. To deal with these issues, the individual who makes the job offer can share information about the company’s desire to facilitate a smooth transition and integration for the new employee — and explain employment policies, including that for implementing effective reasonable accommodations.

Whoever is responsible for responding to an individual who has accepted a job offer should be prepared to describe to the new employee the office location and the type of equipment the company will provide. This need not be detailed, but should include information about the work location and work area, such as: Parking is provided onsite or no parking at the site; standard computer, telephone, cell phone provided; ID card needed to access building; desk workstation/cubicle environment, etc. Also, if the new employee needs to fill out forms before the start date, or to go to a location to obtain an ID, etc., explain this in advance, giving the employee the opportunity to address other potential needs. Having all this information enables new employees to consider if they need to request a reasonable accommodation.

Effective onboarding of employees might require these accommodations:

• Access to Website and online forms
• Print material in an accessible format, including providing media in alternative format as needed (large print, Braille, text file, etc.)
• Accessible parking and building access (keyless entry, security issues, rest rooms, break rooms, exercise rooms, etc.)
• Use of service animals in the workplace
• Computer and communication technology access (alternative input devices, screen reading software, screen magnification, telephone amplification, smart phone or tablet apps, etc.)
• Workspace modifications (furniture, lighting, space, noise abatement, etc.)
• Services or work-related assistance (sign language interpreters, readers, note takers, etc.)
• Emergency evacuation and shelter-in-place plan needs

You don’t need to have all of these accommodations in place for the first day of work; however, an awareness of the potential need and a willingness to implement accommodations as part of your company culture will help you onboard new employees successfully. To help you update your onboarding process if needed, here’s a sample onboarding accommodation assessment form.

Anne Hirsh, M.S., JAN Co-Director

The term “right to work” often confuses HR executives, business owners, and employees alike. Roughly half the states in nation are “right-to-work” states, while the other half are not. In a right-to-work state, an employee does not have to join a union (where there is one) in order to obtain work. In non-right to work states they do. Proponents of right-to-work laws point to the fact that employment rates are higher in right-to- work states that allow for individual contracts. In non-right to work states, which have stronger union lobbying efforts, the argument is that employees in right-to-work states take advantage of the hard work of unions, but don’t have to pay any dues for the effort. It’s a fact that wages are higher in non-right-to-work states. However, if you look at geography, Northeastern and West Coast states tend to be the non-right to work jurisdictions where wages are higher in the first place.

State legislatures throughout the nation are continuing to introduce right-to-work laws. A lot has to do with the political balance of power in that state. Of course, conservative Republican states tend to favor right-to-work laws and Democratic pro-union states prefer what some call “forced unionism.” If you enter “right-to-work” in a search engine, you’ll see plenty of arguments both for and against these laws. To a read an excellent Wikipedia article on this topic, go to http://en.wikipedia.org/wiki/Right-to-work_law.

Peter Drucker and Dr. Edward Deming reminded us that poor performance is a management issue, not an employee one. Most managers receive little management training, and some are capable of such brilliant exploits as:

• Bringing somebody on your team going 45 mph. If your team is going 75 mph, what happens when you bring someone onto it who’s going 45 mph? I guarantee there will be crashes, upset, injuries, and fingers pointed. Make sure that you bring employees up to speed before you thrust them onto a team. Unless it’s an emergency, there’s no excuse for not having an excellent “onboarding” process. Remember that who you hire is the most important part of your job; not simply something to get over.
• Focusing on what people don’t get right. All of us screw up every day. Sometimes it’s a basic thing like accidentally deleting a document. At other times, we make some huge mistakes. Either way, when you’re a boss running 75 mph, it’s easy to nitpick. If you find yourself making more negative deposits than positive ones, cut it out.
• Never giving an “atta-boy.” As a corollary, if managers aren’t giving negative jabs, they’re not saying anything at all. There are no positive offsets. They make no time to show they care. Not a five-minute conversation, not a thank-you note, not a pat on the back, nada. How long does anyone want to work for a boss like that, even if they know they’re doing a good job?
• Taking credit for positive results and pointing fingers at the negative ones. We’ve all been around people like this — and not for long. The job of a boss is to make every person on his or her team a better player. When the team wins, the boss shares credit. When there are losses, the buck stops with the boss. When I search for an example of this behavior, Jets football coach Rex Ryan comes to mind. It’s all about “look at me” and, of course, when things go wrong, it’s not his fault; simply poor play by his players. Right.
• Setting employees up to fail. In my litigation days, I met plenty of bosses who went out of their way to create an employee’s failure, whether out of fear, revenge, or stupidity. Managers like this are a cancer on any organization. If an employee isn’t performing and ownership won’t let you fire them, call ownership out on it. If management still fails to make necessary changes and you can’t be at peace with it, then work someplace else.
• Running their own fiefdoms, detached from corporate objectives. I’ve seen many bosses build a bureaucratic wall around them to guarantee their personal survival. I’ve talked to executives who have run multi-million dollar departments more interested in protecting their retirement savings than growing the company. These managers will damage the company eventually. One reason why companies are smart to move managers around every few years is to keep them from building a moat around their department.
• Failing to keep their mouths shut. Managers learn things about people’s personal lives, job histories, medical problems, family problems, nasty little habits, and more. A manager who shares this information with more people than those who “need to know” is a manager who will get employees upset and the company sued. I remember one manager who was so curious about a subordinate’s possible breast enhancements that he snuck into her personnel files, reviewed her medical records, and proved himself “right.” Then the idiot chose to share thus information with his buddies at the company. When the employee got wind of the situation, you can understand her outrage. What this manager didn’t know was that she had undergone a double mastectomy due to breast cancer two years before, which is why she eventually had the enhancements. How does an employee relationship recover from a situation like that?

Of course, there are more horror stories, but that’s plenty for now. The answer: Promote only qualified people into management and train them constantly so they keep improving.

In doing online research, I came across an interesting white paper that discusses how vigorous (and perhaps manipulative) use of non-union laws can help with organizing efforts. Employers must realize that there are many stakeholders in the compliance game — perhaps including those some never thought of! Note: this is relevant to employers in any state, even though this campaign is targeting California employers.

Speaking of help for disabled workers, the Office of Disability Policy (ODEP) has launched an excellent Web site to help hire and manage disabled employees. All employers should become familiar with it:

http://www.dol.gov/odep/topics/Employers.htm

I read recently that a record 5.4 million workers and their dependents have signed up to collect federal disability checks since President Obama took office. Many unemployed apply for disability benefits as soon as their unemployment benefits run out. There are now a record 10.8 million Americans on disability — double the number since Obama took office. The EEOC has stated a clear agenda to protect the disabled, with an ever-expanding definition of what the term means. The commission is even suggesting that government contracts include hiring of a minimum of 7% disabled.

Politics aside, that’s a lot of disability going on. The ultimate proof of victimology comes from the government labeling people disabled. Uncle Sam classified an astonishing 54 million people as “disabled” in 2005. That’s 19% of the population, or nearly one in five Americans. The U.S. Census Bureau has classified Disabled Americans as the nation’s largest “minority population segment.” Given obesity and longevity trends, we can expect a growing number of disabled, placing considerable strain on the government and employers alike. The crazy thing is most of this “disability” is not due to accident or genetic pre-disposition, but primarily to individual’s lack of exercise, poor diet, and mental attitude.

Of course, the recent jump in disability filings is largely due to current unemployment and poverty levels. The Obama administration is also encouraging it. To see the Department of Labor’s overall approach to this issue, visit http://www.dol.gov/odep/

Employers need to bone up on ADA regulations, take advantage of the resources on HR That Works and from sites such as JAN (http://askjan.org/).

As a final note, I believe that we should help the truly disabled, especially those who can’t help themselves. On the other hand, people who make poor lifestyle choices and then claim disability as result garner little sympathy from me, as do those who “work the system,” taking precious dollars away from those in the disability community who deserve help. Unfortunately, I don’t see the administration making this distinction.