Your Employee Matters

Blanket English-only policies are often found to be discriminatory. A case in point is the recent settlement agreement between the EEOC and an employer that enforced an English-only rule solely against Hispanics.

In EEOC v. Royalwood Care Center LLC, a Spanish-speaking janitor brought a charge of discrimination against the nursing home after he had been fired for violating the company’s English-only policy. Under the employer’s policy, employees were prohibited from speaking Spanish with Spanish-speaking residents of the assisted living facilities. Further, employees were disciplined for speaking Spanish in parking lots while on breaks.

The company’s policy was not enforced, however, with respect to a good portion of Filipino employees who spoke Tagalog. Instead, the company’s English-only rule was implemented essentially as a no-Spanish rule.

The EEOC has provided guidance on circumstances in which business reasons would justify an English-only rule. Although there’s no precise test for making this evaluation, relevant considerations include safety concerns and communication concerns with English-speaking customers.

Before adopting an English-only rule, consider whether there are any alternatives that would be as effective in promoting safety or efficiency. Also make sure to:

• Ensure that the policy on languages spoken in the workplace is applied equally to all persons, regardless of national origin or language spoken.
• Revise training and other policies, especially those on discrimination, to include versions in other languages for limited-English employees.
• Provide opportunities for the claimants to obtain English proficiency training.
• Designate an area in each facility where employees may speak in languages other than English.
• Permit employees to speak their primary languages to customers or patients who speak those languages.

When an employee requests an accommodation, employers should make two separate determinations: (1) Does the employee have a disability; and (2) Does the employee need the requested accommodation because of a limitation (any limitation) associated with the disability? To see how this applies to “side effects,” the EEOC gives this example:

Q: Must an employer provide a reasonable accommodation that is needed because of the side effects of medication or treatment related to the disability, or because of symptoms or other medical conditions resulting from the underlying disability?

A: Yes. The side effects caused by the medication that an employee must take because of the disability are limitations resulting from the disability. Reasonable accommodation extends to all limitations resulting from a disability.

Let’s say that an employee with cancer must undergo chemotherapy twice a week, which causes her to be quite ill afterward. The employee requests a modified schedule — leave for the two days after chemotherapy. Because the treatment will last for six weeks, she requests a leave for this period. The employer must comply unless doing so would constitute undue hardship.

Similarly, any symptoms or related medical conditions resulting from the disability that cause limitations may also require reasonable accommodation. To learn more go to http://www.jan.wvu.edu/.

Given the President’s recent appointments to the National Labor Relations Board, Department of Labor, and EEOC, it’s clear that the current administration will be far more employee friendly than any in recent memory. The administration claims that more than 70% of employers are estimated to continue to violate wage and hour laws (especially those related to misclassification and overtime). Look for such actions as:

• Pro-NLRB decisions.
• Enforcement of fair pay initiatives.
• Support for the Employee Free Choice Act, currently stalled in Congress, but expected to raise its ugly head once again.
• Increased government enforcement of wage and hour and other discrimination laws as more dollars and investigations are assigned to the DOL and EEOC payrolls.

If there’s ever been a time to get your compliance act together, now is that time! HR That Works members should watch our recent ADA, FMLA, Seven Traps, and COBRA webinars.

This case took a bad twist for Southern Air. In May 2008 it filed a defamation lawsuit against former employees for slander in a Connecticut court after they raised air carrier safety concerns with Southern Air, OSHA, and the FAA. The workers, all former flight crew members, in turn, filed a whistleblower complaint with OSHA. OSHA ordered Southern Air to withdraw its lawsuit and pay out the $70.9 million. Of course, Southern Air is expected to appeal the judge’s ruling.

Lesson learned: Don’t sue or otherwise retaliate against employees who file safety complaints. Read more about the case here.

Every person is motivated by either pain or pleasure. Today, many employees are motivated to work hard due to the pain that can be associated with losing their jobs. The problem is that fear-based motivation is similar to that of “kick in the butt” theory of motivation — it only works as long as the fear of the kick is present.

The challenge is to motivate our workforce toward growth, not just survival. This requires nurturing of intrinsic motivation. To paraphrase motivation expert, Bob Nelson, it’s more powerful to light a fire within folks than underneath them. Here are five proven motivational pointers to keep in mind:

1. When people are doing work they can do well and enjoy doing well, they are naturally motivated. This holds true for every one of us. So begin by placing employees in this “sweet spot.” The challenge then becomes not to demotivate someone in this position. The excellent book Leadership and Self-Deception, states that we often deceive ourselves as not being the problem. When you’re running 75 miles an hour, most of us have little time for the positive and tend to deliver negative messages — usually when we react to someone stopping us from running. Praise, perhaps the most important motivational tool, gets short shrift when we’re running for our lives.
2. How you show you care isn’t as important as your effort to show you care. Study after study shows it’s not a specific motivation or retention program that works; it’s the desire and effort to have the program in the first place that makes a difference. What holds true for parenting and marriage also applies to managing: Begin by making an effort, any effort, to show that you care. One way to do this is to spend five minutes listening to someone. When was the last time you stopped running long enough to do that?
3. Engage your employees. You have a sales job to do and you want to know your employees’ fears and desires. Since management by control is dead, the only alternative is management by agreement. Make the employees part of the action in addressing productivity and other management concerns. HR That Works users should take a look at the White Paper: “Getting Your Employees to Think.” Encouraging employee thinking will motivate them.
4. Don’t forget the greenbacks. Money remains the No. 1 reason people go to work — always has been, always will be. But here’s the tipping point: Once folks are paid a “fair day’s wage,” money then falls off as a distant motivator — as a sense of belonging, ego gratification, self-actualization, and other motivators kick in. Make sure you pay a fair day’s wage by doing market surveys. What would you have to pay to hire any one of these employees today? Also, bear in mind that paying too far above grade is a waste of money that doesn’t benefit either the business or the employee.
5. Open the books. I’m a big fan of open book management as a motivational tool. Have your management team read Jack Stack’s Great Game of Business.

Conclusion: Stop running for five minutes, show your employees that you care, engage them, monitor your pay scales, and open the books. Now that’s a motivating formula!

It looks like the Employee Free Choice Act won’t make it to a Senate vote for at least a while. This is good news for employers and employees alike. We’ll let you know if it looks like the bill comes up for a vote again in the near future.

Falsification of Doctor’s Note Prevents FMLA Leave

In Smith v. Hope School, the Court of Appeals for the Seventh Circuit held that an employee’s falsification of medical paperwork precluded her from being entitled to FMLA leave.

After suffering a work-related injury, the plaintiff asked for and was given FMLA paperwork, which she gave to her treating physician. When the plaintiff picked up her FMLA paperwork from the doctor’s office, she added to the doctor’s description of her condition the words “plus previous depression” without the doctor’s approval or permission. Her doctor had never diagnosed her with depression. The plaintiff also backdated her portion of the signature line of the FMLA form and completed a separate Attending Physicians Statement in its entirety, listing diagnoses of muscle tension, chronic headaches, and depression.

Upon receipt of the form, the employer called the doctor about the possible alteration, and the doctor’s office confirmed the alteration. The employer did not approve the FMLA leave request, and the plaintiff was subsequently terminated for unexcused absences. The plaintiff sued the employer claiming interference with her FMLA rights. The Court held, however, that the employer had not interfered with the plaintiffs rights under the FMLA. Because the plaintiff added an undiagnosed condition to her medical care providers certification form, without the knowledge or approval of her physician, the employer was justified in denying her FMLA leave. The Seventh Circuit limited its holding to more egregious alterations of FMLA paperwork, and did not address the question of whether other, more insignificant alterations, such as correcting a typographical error or correcting or adding to a portion of the form with the knowledge and approval of a treating physician, would result in a similar ruling.

Bottom line: You now have the right to contact a health care provider’s office directly about the authenticity of any medical report. Unlike the rest of the country, California employers should not contact the employee’s health care provider directly to verify leave requests.

Paying to Show Up at Election Violates NLRB

In DLC Corp., D/B/A Tea Party Concerts, the NLRB confirmed that it’s a violation of the NLRA to pay off-duty employees to come to the workplace in order to vote in an NLRB election. The union sought to represent the employer’s stagehands, who worked primarily during the summer months. The union filed an election petition and election dates were designated.

A month before the election, the employer sent a letter to all eligible voters, in which it explained some of the procedures for the upcoming election and why the employer was opposed to the union. In addition, the letter encouraged off-duty employees to come to work and vote in the election and promised that the employees would be paid for four hours on that day. Ten of the 56 off-duty employees requested and received four hours pay for voting in the election. The union lost the election by five votes.

The Board held, under controlling labor law precedent, that a party engages in objectionable conduct by paying employees to attend the election unless the payment is reimbursement of actual transportation expenses. In this case, the employer explicitly offered to provide off-duty stagehands with four hours of pay in exchange for coming in to the polling location to vote. The Board held that the offer was substantial and was not linked to reimbursement for travel or other costs. Moreover, the number of employees potentially affected was not de minimis. A new election was ordered.

Wearing Headscarf Not a Reasonable Religious Accommodation

In Webb v. City of Philadelphia, the Court of Appeals for the Third Circuit held that a Muslim police officer’s request to wear a headscarf while in uniform would create an undue hardship for the employer and therefore, it was not religious discrimination to deny her request. The plaintiff, a female police officer, requested permission from her commanding officer to wear a headscarf (a khimar or hijaab, a traditional head covering worn by Muslim women) while in uniform and on duty. The headscarf did not cover her face or her ears, but would cover her head and the back of her neck. The police department denied her request based on its directive outlining the appropriate uniforms and equipment to be worn by the officers.

Based on the denial, the plaintiff filed a charge of religious discrimination with the EEOC and the Pennsylvania Human Relations Commission. While the matter was pending before the EEOC, the plaintiff arrived at work wearing her headscarf. She refused to remove it when requested and was sent home for failing to comply with the police department’s directive. These events were repeated during the next several days. The plaintiff was informed that her conduct could lead to disciplinary action. Thereafter, she continued to report to work wearing the headscarf and was suspended for 13 days. The Third Circuit agreed with the lower court’s holding in favor of the police department. Although Title VII of the 1964 Civil Rights Act prohibits employers from discharging or disciplining an employee based on his or her religion, an employer need not accommodate the employee if it would result in an undue hardship. The police department needed to maintain the perception of impartiality of its work force. Further, uniform requirements are crucial to the safety of officers. The Court held that the City would suffer undue hardship if required to grant the plaintiffs requested religious accommodation.

Bottom line: This court did an excellent job of explaining the factors to consider before declaring that clothing is inappropriate.

Thanks to the Worklaw Member firm of Shawe Rosenthal for helping with these case summaries.

According to data from the Bureau of Labor Statistics, the Department of Labor, Jury Verdict Research, and other sources, here’s the current state of employment practices liability exposures:

1. More claims have been filed. As unemployment rates hover around 10%, you can expect close to twice the claims being filed as when the rate stood at 5%. Many people will view the law as an “out,” whether it’s to protect an existing job by filing a frivolous complaint or rethinking their employment situation a few months after they’ve been trying to get a new job.
2. Jury verdicts are increasing. According to Jury Verdict Research, the verdict figure averages roughly $270,000, an all-time high. We expect this trend to continue. Remember, damage awards go up as people find it harder to return to work.
3. The percentage of the employee win rate is up. Traditionally, employees would win roughly 60% to 65% of the cases that went to trial. Approximately 40% of those verdicts are either overturned or reduced on appeal. According to JVR, the employee win rate has jumped to approximately 70%. We would expect that as the courts get more familiar with employment law, the percentage of cases thrown out or reduced on appeal actually diminishes.

There you have it — a triple header of risk. More claims, more expensive claims, and an increasing plaintiff win rate. Imagine your company getting hit with one of these verdicts during these tough times! If it’s one of those $1 million + verdicts, some companies might as well close their doors. Here’s what we’d recommend:

• Get Employment Practices Liability insurance (EPLI). Despite the rise in exposure, the EPLI market remains soft. Better to buy this coverage now before the underwriting criteria and rates stiffen.
• Audit your personnel practices. Get your HR act together when it comes to hiring people the right way, preventing harassment and discrimination, and managing leave and disability claims.
• Update your policies and handbook, and let everybody know about it. If you can show an EPL carrier that you have your compliance act together, you might be able to get a reduction on your insurance rate.
• Train your managers. All managers should know the basics of discrimination and harassment prevention. Depending on the size of your company, managers should also get ADA (15) and FMLA (50) training.
• Train your employees. All employees should know the basics of harassment and discrimination prevention, as well as how to file a complaint. They should also know how to request disability accommodation or FMLA leave.
• Conduct a survey. Make sure that employees understand what’s required of them and find out if any problems are brewing. We encourage HR That Works members to use the Employee Compliance Survey to help eliminate claims.
• Ask for help if you’re not sure. These laws are complicated and carry huge risks. Smart companies pick up the phone and speak to an employment law expert to make sure that they get their acts straight. Again, we encourage HR That Works members to use the Hotline Service.

We’re the first to acknowledge that you can’t run your business if you’re always worried about getting sued. We also know it’s foolish to take unnecessary risks where the stakes are this high. Follow these steps and you’ll reduce the cost of your EPLI premiums, while avoiding wasted time, expense, and drama in the process.

Many employers get confused about their obligation to continue health care coverage when someone is out on extended work comp leave. Here are some general guidelines to consider:

• Workers comp law doesn’t require an employer to keep paying an employee’s health care when they’re on extended leave due to a work comp injury. An employer June not discriminate against someone on work comp leave. For example, if your practice is to continue health care coverage for two or three months hoping that someone can return to work, you need to maintain this practice with an employee on work comp leave or face a discrimination or retaliation claim.
• Be aware of a Health insurance provision that employees must be “actively employed.” For example, if they haven’t worked for two months, they June not be actively employed. Even though you might have extended their coverage, if they have a significant claim, the carrier June decide to decline coverage, leaving them unprotected because you didn’t issue them a COBRA notice. Not a good spot to be in.
• Remember, if you have more than 50 employees, the FMLA requires you to maintain extended coverage for at least 12 weeks — but only if there’s a reason to believe the employee will be returning to work.

Most leaders and managers are not natural presenters. When speaking to employees, keep these tricks of the trade in mind:

• Be clear about the goal for your message. Try to drive home one to three points at the most. Anything more won’t be memorable. You can support this by putting up a visual summary of the points you want them to remember.
• Connect with individuals. When President Obama gives a talk, he will focus on making eye contact with one person at a time. Rotate around the room and make sure to give your attendees a few moments of your time.
• Start by building consensus. Make statements that you can see people agreeing with. Once you have everybody nodding their heads in agreement, then you can tackle more difficult subjects.
• Give concrete examples. For example, instead of saying “Bob and his team have been doing a great job,” say “When Bob was able to push that project through on time despite all of the challenges his team faced, it was a big win for the company, resulting in a $100,000 on-time performance bonus.”
• Don’t rush when you talk. Silence is one of the greatest tools of a presenter. When you want to make a point sink in, give your audience time for this to happen. You can always add statements like, “Does that make sense?” to enhance the buy-in.
• Ask if there’s a “higher thought.” As the saying goes, “None of us are as smart as all of us.” If there is a better idea, you want to invite it so you know about it.
• Watch your body language. First of all, make sure you have good posture. Although you don’t want to appear stiff, avoid flailing arm or hand gestures.
• Solicit input from all attendees. If your goal is to get feedback at the meeting, make sure you solicit it from those who normally sit quietly. Don’t allow the conversation to be dominated by the few who always dominate the conversations.
• Finally, ask for feedback. If there’s no time to do so in the meeting, then make sure you follow up afterward. Ask folks what they got out of the presentation and what they intend to do with it. Then set up a time or other method to obtain additional feedback.

By using these speaking techniques, you can go a long way to improving your leadership presentations.