Your Employee Matters

For years, I’ve encouraged employers, brokers, and risk managers to develop a relationship with a good occupational medicine physician for pre-hire physicals, wellness promotion, disability, FMLA, and workers comp claims. At the end of April, I’ll be speaking to the annual conference of ACOEM at their on the intersection of the ADA, FMLA, and Workers Comp (see below). I also culled from the program additional classes these physicians will be attending, to help you understand why their expertise is so much more valuable to employers than that of their non-specialized peers.

To find an occupational medicine physician in your area, go to the ACOEM website at www.acoem.org and click on the upper right hand corner. You’ll be glad you did!

Let’s say that you’re working for a company at a retail counter with a great deal of public interaction every day. Suppose that your storefront is in the middle of an affluent neighborhood, right next to a Ruth’s Chris Steakhouse and Sun Trust Bank. Now let’s say that because you have a poor landlord the flowers and front entrance haven’t been maintained for some time and are overgrown with weeds and unattractive. Efforts to get the landlord to clean things up have failed.

What would you do?

This can be a great interview question, providing valuable insight into the character of job candidates. Some people might suggest that you sue the landlord. Others would rather first hire a landscaper to fix things up, and then sue the landlord. Some would simply look the other way. Still others would prefer to stop by on a Saturday with a few plastic bags, a small shovel, a small rake, and a few crates of flowers – and just deal with the problem.

This is a true story. The retail operation in question was a North Palm Beach post office. I don’t know if it still in that condition but it amazes me that the employees of the branch would allow themselves to walk by this mess every single day and do nothing about it – for their own sake, never mind anyone else’s! When I asked them about it they were quick to complain but reluctant to simply fix the problem.

Any time that I’ve rented an apartment, home, or office, I’ve made an effort to spruce it up- because that’s who I am. I couldn’t stand to look at those weeds every day; it would drive me nuts. But of course, most people would rather point a finger and, if necessary, file a lawsuit than just step in and get something done.

What type of employees and managers are you looking for? Do you want people who will wait for somebody else to pick up their responsibilities and go first – or those who will just spend a few hours and get that nagging thing finally done? Try this as an interview question and you’ll find out which kind of employee will come to work for you!

I have a confession to make: I love In-N-Out Burger. As with any type of fast food, you can’t eat it frequently, but it’s amazingly good when you do. Both of my sons worked for In-N-Out; and the company has some of the best employees and managers in the fast food industry. They pride themselves in being a well-meaning Christian company. They pay more than anyone else in the industry and treat their employees with respect. Unfortunately, two plaintiffs, both of whom are black and older than 40, were rejected for employment and, after seeing an attorney, filed a class action lawsuit.

Companies such as In-N-Out can face discrimination and disparate impact type claims because their statistics for hiring don’t match the general applicant pool. If this proves out to be the case is there in fact a bias? I don’t see it and doubt if the company practices any systemic discrimination. The only bias I can see is that In-N-Out demands a high level of performance from its employees. Very simply, if you’re too old to move quickly, you’re going to get run over by a quicker and probably younger employee. I would like to think that regardless of your age, race, or sex, if you can play team the In-N-Out Burger way and produce as efficiently as the other workers, you certainly deserve a job.

My favorite comment among all the comments posted about this case (with more than 90% pro In-N-Out) was:

“Actually, In-n-Out does discriminate…

…against lazy, shiftless, self-entitled whiners, which is why you see a lot of ambitious, courteous, and diligent Latinos, Asians, whites, and Samoans working there, and which is why its service is so fantastic.”

Although many women work through their pregnancies without difficulty, some of them with physically demanding jobs or complicated pregnancies might seek accommodation at some point. However, the Americans with Disabilities Act (ADA) does not define pregnancy as a disability or disorder, but as a natural process related to reproduction.

If pregnancy is not a disability, are pregnant women entitled to accommodation? What about women with pregnancy-related impairments? Are they covered by the ADA Does the Pregnancy Discrimination Act (PDA) entitle pregnant women to the accommodations they need to continue working during pregnancy? Are there state laws that entitle pregnant women to accommodation? These are the types of questions are being examined by the National Women’s Law Center (NWLC) and other women’s legal organizations. According to NWLC, both the ADA and the PDA often require reasonable accommodation for pregnancy.

Let’s start with the ADA. The regulations interpreting the ADA Amendments Act (ADAAA) state that pregnancy-related impairments can meet the definition of disability if they substantially limit a major life activity. Pregnant employees with impairments that meet the definition of disability will be entitled to an accommodation under the ADA. Because the ADAAA has broadened the definition of disability to include many temporary and less severe impairments, more workers with pregnancy-related impairments will now qualify for direct coverage.

In addition, the interaction between the PDA and the ADA will often result in a heightened duty to accommodate even pregnant employees who do not meet the ADA’s definition of disability. NWLC argues that the PDA requires employers to treat pregnant women at least as well as other employees with similar limitations in their ability to work. Because the ADA requires employers to accommodate a wider variety of medical conditions, pregnant women will often have similar limitations to people who are entitled to accommodations under the act – which means that they’ll be entitled to accommodations as well. For example, the Equal Employment Opportunity Commission (EEOC) has made it clear that the ADA requires reasonable accommodation of a temporary back injury that leaves an employee unable to lift 20 pounds for a few months. Because pregnant workers must be treated as well as employees with similar work limitations, a worker who has been instructed not to lift weights of more than 20 pounds because of her pregnancy must also be accommodated, according to NWLC.

To ensure that employers’ legal obligations to provide accommodations are unmistakable, the NWLC and a broad coalition of groups from the health, disability, and women’s rights communities are urging Congress to pass the Pregnant Workers Fairness Act (PWFA) – draft legislation which states that pregnant women are entitled to reasonable accommodations that can be provided without undue hardship to an employer. These are the same types of accommodations that are available to people with disabilities under the ADA. In addition, some state laws already give pregnant workers’ rights to workplace accommodations, as described in a recent report by Equal Rights Advocates.

Accommodating pregnant employees is also in the financial interest of employers. The NWLC provides several sound business reasons why employers should accommodate their pregnant employees in the same way that they do for workers with disabilities. Data show that the costs of these accommodations are likely to be minimal, and that providing them will have bottom- line benefits to the employer: including reduced workforce turnover, increased employee satisfaction and productivity, and lower Workers Compensation and other insurance costs.

Despite the legal and financial arguments, some employers are still not accommodating pregnant employees. This is why the EEOC recently identified “accommodating pregnancy-related limitations under the ADAAA and the PDA” as a priority area for its enforcement efforts through 2016.

If you are an employee who was not accommodated during your pregnancy or you believe you were discriminated against on the basis of pregnancy, the NWLC would like you to share your story. Employers interested in sharing their experiences accommodating pregnant employees or in consulting about best practices are also invited to contact NWLC, at pregnancyandwork@nwlc.org.

Keep in mind that when it comes to providing accommodation ideas, Job Accommodation Network (JAN) consultants will brainstorm accommodation ideas for anyone with any type of limitation, including limitations related to pregnancy, whether or not the ADA covers the condition. So, if you’re an employer trying to accommodate pregnant employees, or a pregnant employee looking for accommodation ideas to offer your employer, feel free to contact JAN for assistance!

-Linda Carter Batiste, J.D.,

Principal Consultant with comments from the National Women’s Law Center

P.S. Speaking of job accommodations, HRThatWorks members can join us for a joint webinar with JAN on Providing Accommodations for Employees with Mental Health Impairments, to be held March 20th at 1PM EST by going to https://www1.gotomeeting.com/register/324256449.

I recently responded to the LinkedIn question “How can a company attract and maintain top talent?” in this way:

“Although you’ll get many responses about technique and strategy, in my experience that’s just the beginning of the answer. There’s a significant emotional aspect to the question. In the words of the Buddha, “What comes to you comes from you.” So that’s what I’ll focus on in this answer; the emotional blockages that stop things from coming to you. Ask yourself these questions:

• Are you really willing to do what it takes to attract and keep great talent?
• Are you willing to hire somebody better than you? Or even better than their manager?
• Does driving towards excellence scare you? Are you prepared to hire the top 10%?
• Would you fit in this category?
• Is there such a thing as an “overqualified” applicant?
• Are you open to hiring and managing different types of people? Can you hire without baggage?
• Do you make a conscious effort to show people you care – or is this just your self-talk?
• Do you allow employees to make a difference? To stretch? To find the good in their work?
• Do you let go of poor performers, thus making room for more good ones?
• Does leadership give a hoot about people, or simply growing their bottom-line?
• Is this a fun place to work or is the attitude that fun and work don’t mix?

Most importantly, think about your own experience. Why would you work somewhere or stay there? “

“Wish for a hundred years of doing your duty.”

The Upanishads

(Ancient Hindu text)

We’ve all heard the question “Do we eat to live or do we live to eat?” My uncle told me that his goal was the latter; not surprisingly, he died of obesity and heart disease. Yet if we simply eat to live we can deprive ourselves of the glorious experience of sharing God’s gift of food with one another. Who doesn’t feel better about life after a great cup of coffee, a great meal or a slice of apple pie? Of course, the answer lies in the balance. Out of balance in either direction and we deprive ourselves of the fullness of life.

Now let’s think about work in these terms. Of course, we must work to live. It’s called survival and security. No surprise, the people who tend to survive and obtain security also tend to work the hardest. Like worker bees, we’re programmed to get it done.

Of course, that’s only half of the equation. We must live to work. As Victor Frankel reminded us, man searches for meaning. Meaning comes through our relationships with our friends and loved ones, with God, and with the work we do. As Shakespeare so eloquently stated, “To work we love, with delight we go.” Abraham Maslow defined this state as “self-actualization” – the highest level of being.

It feels as if so many of us are out of balance on the working-to-live side of the equation. Although a few are really going for it, living their work to its fullest; far too many people are stuck in the steady, depressing rhythm of stressful ho-hum work. As Joseph Campbell reminded us, “Work can be a life-draining affair.” How many of us leave the workplace telling ourselves “Whoa…that was an awesome day. I’d like to do that again tomorrow!”

I find that to get life out of our work, it helps to inspire ourselves. Inspire comes from ancient Latin and means to “breathe life into.” The best way to inspire ourselves is with a better story – a story where we can make a greater difference – where we bring more spirit to the work we do every day. I encourage you to watch the Spirit at Work Webinar I did for HR That Works members.

When it comes to both sides of the equation, we must ask ourselves how to work smarter, not harder. How can we manage our time in a way that generates additional value? I recommend that you study the Time Management Training Module on HR That Works. If you’d like information, just email me at don@hrthatworks.com.

As Depeche Mode sang, “Get the balance right!” When you do, you’ll have no doubt about your willingness to work hard, but you’ll also become far more excited about the difference you make every day. This holds true whether you’re in your 20s and entering the workforce, or in your 60s and contemplating retirement. The last thing you want to do is live a life of regret because you simply put X’s across your work calendar. Work to live – and you’ll enjoy a work experience without regrets.

Technology keeps reducing the need for employees to come into the workplace. An interesting article in Human Resource Executive magazine spotlights Unilever’s program for co-mingling home and work activities. Unilever has taken a number of steps that you might consider as part of your telecommuting program:

1. Create “plug and play workstations” so that telecommuters can come in and work on a project with their team or find some quiet time to themselves. These work areas have a clean desk policy — employees are expected to clean them up when they leave.
2. Understand the difficulty of monitoring time and attendance. Although this is not an issue with exempt employees, non-exempt employees can find themselves working all hours of the day. We did a Results Only Work Environment (ROWE) webinar which focused on results produced, rather than hours worked. However, this approach can create wage and hour headaches.
3. Consider security issues. Remember that the telecommuter’s home office has become an extension of your company. You’ll need to make sure that data is secure, workplace safety and company ergonomic standards are in place, and that you have the proper insurance coverages.
4. Provide employees with access to an environment that’s conducive to work.

The Unilever story has been a success, with about 95% support from workers. As one employee stated, “We work at home and the real reason we come to work is collaboration.”

For more information, HR That Works members should take a look at our Telecommuting report, checklist, and policy.

Fraudulent payment of unemployment insurance benefits is a nationwide problem, accounting for as much as 14% of total payments in some states. The chart shows that most states are paying anywhere from 8%-12% extra in claims. When you consider that the payment period for many claims has been extended during the Obama Administration, that’s a lot of wasted dollars!

http://www.dol.gov/dol/maps/map-ipia.htm#.ULqTLobNnsk

Most employers give up on fighting unemployment claims because they find it very difficult to win them. Lawyers are too expensive to hire, and employers have too little expertise — that’s why unemployment benefits consultants have set up a niche practice of defending employers.

In general, unemployment insurance is available to employees who lose their jobs “through no fault of their own,” as determined by state law. Although federal law sets some guidelines, each state administers its own unemployment insurance program. All but three states fund their programs from a tax imposed solely on employers. Employees generally receive payments for maximum of 26 weeks in most states, unless the period is extended in times of high unemployment. Employees are required to look for other work and prohibited from receiving benefits once they obtain it (this is where much of the fraud comes in).

In most states, an employee fired for misconduct can be denied unemployment benefits. The question is, how do you define “misconduct”? Essentially, it has to be a willful act, such as insubordination, excessive absenteeism, insubordination, dishonesty, or drug or alcohol use that damages the company in some way. However, fired employees who simply don’t do their job properly or in a timely fashion will be eligible for unemployment benefits.

For example, the California Unemployment Code § 1256 states:

“An individual is disqualified from unemployment compensation benefits if … he or she has been discharged for misconduct connected with his or her most recent work.” Misconduct is limited to conduct evidencing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior, which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability wrongful intention or evil design, or to show an intentional and substantial disregard of the employer’s interest or the employee’s duties and obligations to his employer. On the other hand, mere inefficiency or unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not deemed “misconduct” within the meaning of the statute.”

If you intend to contest an unemployment claim, make sure that you have documentary support (such as a statement under oath signed by the claimant’s manager or fellow employees, a photo, or a warning notice). Of course, fighting a claim will up the ante with the employee, who might respond by contacting an attorney and filing additional claims. Always something to consider!

Finally, many companies suffer from high unemployment claims because they have unnecessarily high turnover rates. If this is the case, ask what you can do to prevent unwanted turnover. You should also question why you hired the terminated employees in the first place.

Here’s a second case about an employer who skirted the law. One of the major questions involving tips is the degree to which management gets a piece of the action. A recent federal District Court decision in Massachusetts (Hernan Matamoras v. Starbucks) has followed the trend of the US Department of Labor and many other states by prohibiting an employer from pooling tips with management-level employees. The giant coffee shop chain ended up having to pay to its baristas a bonus because it had allowed shift supervisors, who acted as baristas roughly 90% of the time, to share in the tip pooling. The court stated, “Stripped of rhetorical flourishes, Starbucks’ position invites us to repudiate both the precise language and the clear intent of the 2004 amendments and to resurrect the primary duty test. We decline the invitation.” Even if the supervisors spent only 10% of their time managing, the fact that they were managers barred them completely from sharing any tips.

For more information on tipping, see the FLSA memo and position paper, as well as guidelines from the California Department of Industrial Relations

http://www.dol.gov/whd/regs/compliance/whdfs15.pdf

http://www.dol.gov/whd/FieldBulletins/fab2012_2.htm#.ULqQyYbNnsk 

http://www.dir.ca.gov/dlse/FAQ_tipsandgratuities.htm

Please refer to the BNA state law summary for your state on HR in the compensation area of HR That Works.

In the California case, Richie v. AutoNation, an employee out on CFRA (FMLA) was fired by his employer when he was found to have been working at a restaurant he owned during his leave period. The company’s leave policy prohibited outside employment during leave. The court ruled in favor of the plaintiff, stating that FMLA/CFRA (the California equivalent) has a process to follow in shortening FMLA leave if you believe that an employee no longer qualifies for it. You cannot create your own rule or process and, in a sense, do an end run around FMLA protections. The court ruled that because job reinstatement is mandatory, the only way to stop leave properly is by following the CFRA process and questioning the medical opinion of the employee’s doctor.

This decision reminds us that ignorance of legal requirements is no excuse. In this case, the company argued that it had a good faith defense because it was not aware of this limitation on managing leave. The court essentially said “So what? It’s a mandatory statutory obligation, which you can’t avoid.” As a different court stated, “A showing that an employee is unable to work in the employee’s current job due to a serious health condition is enough to demonstrate incapacity. The fact that an employee is working for a second employer does not mean that he or she is not incapacitated from working in his or her current job.”

Some additional notes:

1. The decision reminds us that an employer’s policy on secondary employment during FMLA leave must be the same as that for employees who are not on FMLA leave. Otherwise, the policy itself violates the law.
2. Second, the court overturned an arbitration decision in this case which allowed the court’s good faith defense. Although review of arbitration is very limited, the court will step in if the arbitrator misapplied the law.
3. Finally, whether it’s FMLA leave, ADA accommodation leave, use of PTO or sick pay, etc., if you doubt the veracity of any employee’s story (i.e. they were playing soccer or lifting pianos this weekend), you must follow the proper procedures so that you don’t find yourself trapped like AutoNation did in this case.