robintek

The statutory duty of employers to reassign disabled employees to vacant positions is mandatory. If a disabled employee can be accommodated by reassignment to a vacant position, the employer must do more than consider the disabled employee along with other applicants; the employer must offer the employee the vacant position. In a number of situations, reassignment would be unreasonable:

• It’s not reasonable to require an employer to create a new job for the purposes of reassigning the employee to this job.
• An employer is not required to reassign a disabled employee to a position that would constitute a promotion.
• An employer is not required to reassign the disabled employee in a way that would contravene the employer’s “important fundamental policies underlying with a legitimate business interest” (a very broad, case-by-case analysis).
• The job for which the disabled employee seeks reassignment must be vacant. In determining when a position is truly vacant, courts have ruled that “a position is ‘vacant’ for the purposes of ADA’s reassignment duty when that position would have been available for a similarly-situation nondisabled employee to apply for and obtain.” For example, if a company uses temp employees and under normal circumstances, nobody could apply for or obtain this job, it’s not considered vacant under the law.

Overtime claims aren’t going away. A marginal claim filed by one disgruntled employee can easily turn into a class action involving dozens of workers. To help avoid such claims, follow these guidelines:

• Make sure employees that are appropriately classified as exempt. The FLSA and the State of California have done a great job defining the scope of these classifications. Unfortunately, many employers ignore them entirely or simply try to get by with a quick self-serving analysis. You’ll find the links to these definitions at http://www.dol.gov/elaws/esa/flsa/screen75.asp and http://www.dir.ca.gov/dlse/FAQ_Overtime.htm. HR That Works Members can also view the Wage and Hour Training Module.
• Don’t blow a legitimate exemption by docking pay. Remember, you must pay an exempt employee for the whole week, if they work any part of it. There are exemptions in which employees purposely decide not to come to work, etc. If you treat somebody like a non-exempt employee, so will regulators, regardless of their title.
• Job descriptions alone won’t cut it. Regulators will look at actual job duties and ask claimants to fill out timesheets describing their activities. Under Federal law, this is a qualitative analysis in which the “primary” activity is most important. Under California law, there is also a quantitative analysis which requires the employee to be engaged in their primary activity at least 50% of the time to be exempt.
• Watch out for unauthorized overtime. Assuming someone is classified properly as non-exempt, are they abusing overtime? One printing company that began using the HR That Works Overtime Authorization Form reduced its overtime exposure by $5,000 the first month! Ask yourself: If there is overtime, is it legitimate, and if so, how do we minimize it?
• It’s almost impossible to have more exempt employees than non-exempt employees. Few types of businesses (other than law firms, medical offices, engineering or CPA firms, etc.) can get away with this. Remember, if a person isn’t an executive, a real boss, in outside sales, or highly paid as a computer professional, they are not exempt –no matter how smart they are, no matter how long they’ve worked for you, and no matter how little you control them.

In workshops, I joke that “it only takes one felon to ruin a day.” This really isn’t funny, especially if such a person happens to victimize your business. Unfortunately, despite the advice that all employers should do criminal background checks on all employees, many businesses still don’t do so because they think bad things only happen to other people, or they claim that they don’t have the time or money. Remember, folks with a felonious background sell drugs, rob people, assault people, kill people, defraud people, embezzle, and engage in many other sins. I’m not saying never hire someone with a felonious background. I have some printing company clients who run their Heidelberg presses 24/7 hours a day. Most of the workers on their third shift have a criminal record. At least these companies know what type of criminal they’re dealing with. Remember this too: If you use a temporary firm, recruiter, leased employee, etc. make sure that whoever provides this person for you has done their criminal background checks.

As always, we recommend using our partner www.globalhrresearch.com.

One of the greatest frustrations with the “old” Family and Medical Leave Act was how it regulated company call-in procedures. With the new and improved version, the Department of Labor pretty much allows a company to require compliance with its call-in procedures so long as it doesn’t restrict the rights of the FMLA.

As the preamble to the final rule noted:

“The Department recognizes that call-in procedures are routinely enforced in the workplace and are critical to an employer’s ability to ensure appropriate staffing levels. Such procedures specify both to whom and when an employee is required to report an absence. The Department believes that employers should be able to enforce non-discriminatory call-in procedures, except where an employer’s call-in procedures are more stringent than the timing for FMLA notice. Additionally, where unusual circumstances prevent an employee from seeking FMLA-protected leave from complying with the procedures, the employee will be entitled to FMLA-protected leave, so long as the employee complies with the policy as soon as he or she can practically do so.”

So, if an employee can’t call with a foreseeable leave 30 days in advance, then they should be able to do so at least, “absent emergency situations, where an employee becomes aware of a need for FMLA leave less than 30 days in advance, the Department expects that it would be practical for the employee to provide notice of the need for leave either the same day (if the employee becomes aware of the need for leave during working hours) or the next business day (if the employee becomes aware of the need for leave after work hours).”

This month’s Form of the Month is a standard leave notice requirement that incorporates in the FMLA language. As always, if you’re an HR That Works member and have any questions about the FMLA, please don’t hesitate to contact the Hotline.

Opinion Letter: FMLA 2009-1-A does a good job of summarizing the above.

I’m an unabashed promoter of Southwest Airlines. As someone who travels a great deal, I find the company’s customer service, pricing, and all-around flying experience to be the best in the industry. Amazingly, in 2009, Southwest continued its profitability streak for the 37th consecutive year, a remarkable feat amidst the worst recession most of us can remember. A review of their 2009 “One” Report helps define what makes Southwest so different: Its focus or passion in three areas – performance, people, and our planet.

In terms of performance, the company reduced overhead by eliminating the bottom least productive 10% of their flights. They also increased revenue with their early-bird check-in program, and trimmed costs where possible by offering voluntary early retirement, freezing overall comp and executives’ salaries, avoiding fleet growth, and conserving jet fuel.

According to Southwest, “With a Warrior Spirit, a Servant’s Heart, and Fun-Luving Attitude, our employees carried out the mission of Southwest Airlines – dedication to the highest quality customer service, delivered with a sense of warmth, friendliness, individual pride, and Company Spirit.” Even in a recession, they donated $11.6 million and more than 45,000 employee volunteer hours to charity.

Finally, Southwest, like many other corporations, takes its green initiative seriously.

How hard could it be to follow their example in your business?

• Eliminate the bottom 10% of clients, customers, and activities.
• Put a hold on employee count and management salaries.
• Reduce overhead and trim where possible.
• Continue to give, knowing that it always comes back to you.
• Define your culture as one with a “Warrior Spirit, Servant’s Heart, and Fun-Luving Attitude.”

Of course, if this were as easy as it sounds, all the other airlines would do it too. Not surprisingly, just about every one of Southwest’s competitors is unprofitable, horrible to fly on, and certainly not having any fun. I’ll continue to fly Southwest, own its stock, and preach its way of business because I believe in them – as do millions of others.

Note: On page seven of Southwest’s report, you can see the numerous 2009 awards and accolades, including its rank as the seventh most admired company in the world and the world’s most admired airline company; according to Fortune Magazine. Not surprisingly, they also have the highest customer satisfaction rating and the best on-time performance of any airline. Interestingly, Alaskan Airlines comes in second in both categories and they have adopted many of the Southwest ways of doing business.

I recently read that only 47% of 18-34 year olds “really care about the fate” of the enterprise for which they work – compared with 64% of those 55 and older. Although statistics like these make it easy to criticize the M generation, bear in mind that more than one-third of workers 55 and older feel the same way. So what are employees most concerned about? I won’t take you through Maslow’s Hierarchy of Needs. However, I encourage you to read the White Paper I wrote on it on HR That Works. Maslow talks in terms of survival, security, belonging, ego, and self-actualization needs. When it comes down to it, this is what most employees care about:

• A fair day’s pay. 99% of the population goes to work because they have to earn money. Depending on the employee’s needs and environment, pay can either be a major or minor motivating factor.
• An opportunity to grow at the company. Growth means job security, as well as more pay. Do your employees have a roadmap for this growth? How are you managing a situation in which there are few growth opportunities? Remember, people might know their present circumstances, but be uncertain their future. Don’t leave them guessing.
• A positive work experience. Work is innate to our souls. It’s a great source of meaning to us. Ultimately, people want to enjoy the work experience. As Joseph Campbell so famously stated, “Work can be a life-draining affair.” I hope this isn’t the case at your company, especially if you tend to retain your best people.
• A good relationship with their boss. This is perhaps the most critical part of the work experience. Do your managers empower employees or try to control them? Do they have a good bedside manner and do they encourage employees to take on new tasks and to grow in their jobs? Many a good company has lost many a good employee due to mediocre or poor managers.

Ultimately, employers must acknowledge that today’s loyalty is not to a company, but to project, career, and work relationships. Although addressing those needs might not produce the most loyal employees, it can certainly produce highly productive ones.

Remember, today’s best and brightest employees don’t have to work for you – or anyone else. What type of career and financial opportunities can you offer that they can’t get on their own or with someone else? As Daniel Pink notes, “This is a free-agent nation.” Businesses that recognize this reality will be the ones that succeed.

There’s been a lot of press recently about the possibility of the nation falling back into a deep recession. Let’s hope not! But, just in case, are you and your management team prepared to slash costs by 10%, 20%, or more again? Do you have a Plan B for your workforce? The recession caught plenty of employers off guard. On the other hand, I know of many companies that had a Plan B in place and were able to deploy it rapidly.

Being prepared is essential for effective management of risks, whether you’re facing an economic downturn, exposure to a lawsuit, or an environmental disaster. If there’s another recession, remember that HR That Work has a number of tools to help you manage the layoff and termination process in a graceful and legal manner. I’d also recommend taking time to discuss this issue and identify the critical parameters to consider when or if the time does come.

The U.S. Department of Labor has launched a new Web site that reports (in a searchable format) employer violations. The site, http://ogesdw.dol.gov/, catalogues all DOL enforcement data regarding employer violations from the Employee Benefits Security Administration (“EBSA”), the Mine, Safety & Health Administration (“MSHA”), the Office of Federal Contractor Compliance Programs (“OFCCP”), the Occupational Safety & Health Administration (“OSHA”), and the Wage & Hour Division (“WHD”). The DOL’s goal in launching the site is to “make the enforcement data, collected by these agencies in the exercise of their mission, accessible and searchable, using common search criteria, by the public. It intends, also, to engage the public in new and creative ways of using this data.” The site will soon permit searches by company name. Companies should check the site frequently to ensure the accuracy of its content.

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

A July 2010 Corporate Counsel article analyzed a huge discrimination verdict rendered against Novartis in a Manhattan federal district court jury trial. The jury determined that the company discriminated against its female sales representatives, creating an insensitive and hostile working environment. Instead of taking a conciliatory approach during trial, Novartis pressed hard and according to the article, responded by labeling the plaintiffs in front of the jury with demeaning and harsh stereotypes. The jury awarded $3.36 million to the 12 named plaintiffs, plus an additional $250 million to a class of additional 5,600 other plaintiffs. Of course, Novartis plans to appeal.

Interestingly, Novartis noted that Working Mother magazine had recognized the company for 10 years in a row as one of the top 100 firms for working mothers (Integrity, anyone?).

Lesson learned: Anytime an employer goes to trial justifying its conduct, and in fact, laying it on even thicker, it runs the risk of an enormous verdict. A conciliatory approach will usually result in a settlement or smaller jury verdict. Read the article here.

As part of my ongoing research efforts to help our members, I discipline myself to review Find Law’s weekly appellate court case summaries. A few weeks ago, the review summarized 29 cases – count ‘em, 29:

1. Rent-A-Center West, Inc. v. Jackson
2. Granite Rock Co. v. Int’l. Brotherhood of Teamsters
3. Rodriguez-Garcia v. Miranda-Marin
4. Malone v. Lockheed Martin Corp.
5. Zakrzewska v. The New School
6. NLRB v. Talmadge Park
7. Durakovic v. Bldg. Serv. 32 BJ Pension Fund
8. Ruiz v. Cty. of Rockland
9. Edwards v. A.H. Cornell & Son, Inc.
10. Air Line Pilots Ass’n v. US Airways Group
11. Kemp v. Holder
12. Winnett v. Caterpillar, Inc.
13. Pickett v. Sheridan Health Care Ctr.
14. Kobus v. Coll. of St. Scholastica, Inc.
15. Ringwald v. Prudential Ins. Co. of Am.
16. Jones v. Nat’l. Am. Univ.
17. Hawaii Stevedores, Inc. v. Ogawa
18. EEOC v. Peabody Western Coal Co.
19. Simonia v. Glendale Nissan/Infiniti Disability Plan
20. Medlock v. United Parcel Serv., Inc.
21. Narotzky v. Natrona Cty. Mem. Hosp. Bd. of Trustees
22. Armstrong v. Geithner
23. Schaefer v. McHugh
24. Gonzalez v. Dept. of Labor
25. Murthy v. Vilsack
26. Bifulco v. Patient Bus. & Fin. Serv., Inc.
27. Myrick v. Mastagni
28. Baker v. Am. Horticulture Supply, Inc.
29. Faulkinbury v. Boyd & Assoc. Inc.

Of course, none of these companies planned on being a defendant in an employment lawsuit. So, what were all the lawsuits about? Five were ERISA cases. We’ve had ERISA experts on some of our Webinars.

There were also five union cases, including one in which the company was suing the union under the Labor Management Recording Act for damages caused by a strike. In one of the union cases, the 2nd Circuit invalidated an NLRB Bush-era decision that only had two judges on the board. This is the beginning of the undoing of those Bush-era NLRB decisions. Again, we have had Webinar guests on union avoidance.

There were four race and discrimination cases, including an interesting one against a coal company by Hopi and other Native American, claiming that the coal company discriminated by favoring Navajo workers.

There were two ADA cases, one FMLA case, one privacy case, one breach of contract case, and one age discrimination case. Of the three wrongful termination cases, one was brought by a group of neurosurgeons who sued a hospital for “constructive discharge” in part because after the surgery operations shut down and the doctors left, the hospital claimed that they had stolen equipment and ordered a search of their lockers. Apparently, the search didn’t find any equipment, nor did the hospital claim that any of the surgeons specifically stole anything. The court held that it was reasonable for the hospital to do this search because it focused on instruments that could only be used in surgery.

There was a wage and hour class-action suit in California (no surprise there), claiming that security guards weren’t paid properly for their rest and meal periods. Another lawsuit was brought by a whistleblower who was transferred after testifying in an ethics probe.

That’s nearly 30 appellate cases decided during a single week in a country with millions of employers. Employment practices liability exposures might not be frequent. However, I can tell you from reading the results in these cases they are certainly severe. According to Jury Verdict Research, the average verdict hovers around $270,000, with million-dollar verdicts seemingly commonplace. Whether a company won or lost in any of these cases, it probably spent at least $200,000 in attorneys’ fees.

What should you make of all this? Very simple – be prepared to handle compliance basics! Get proper advice on managing your benefits. Focus on developing effective employee relationships and work with competent attorneys to prevent unnecessary union organization, as well as bargaining with an existing union. Make sure your HR folks stay abreast of the ADA, FMLA, age discrimination, race discrimination, and sexual harassment exposures. We have a ton of tools on HR That Works to help with those.

If you’re an HR That Works member and have a question in any one these areas, you can rely on the Hotline support of the Worklaw® members and yours truly to help get you through any tough spot.