Your Employee Matters

In CBOCS West, Inc. v. Humphries, the high court ruled that an employee could bring a claim of retaliation under the Civil Rights Act of 1866 even though the statute doesn’t mention retaliation. In a 7 to 2 vote, the Supreme Court held that the Civil Rights Act of 1866 encompasses claims of retaliation that follow complaints of discrimination based on race.

Here are some pointers to help prevent retaliation claims:

• Remember that an employee can turn a marginal underlying claim into a great retaliation claim based on numerous Supreme Court rulings.
• Any time anyone has a claim filed against them, it feels “unfair.” It’s important to deal not only with the employee, but with the accused in this process. Make sure that the accused manages their emotions properly so that they don’t, in fact, retaliate against the complainant.
• Give the complainant a way to file follow up complaints that feels “safe” to them, for example to assigning an ombudsperson for follow up. Make sure to investigate any underlying claim thoroughly. However, do not promise the claimant confidentiality in the process.
• Finally, make sure to notify your insurance carrier about the underlying claim. If you have an Employment Practices Liability policy, it might have a “trigger” provision that requires this notice. The failure to give notice may limit your coverage.

We encourage HR That Works users to review the Training Modules on sexual harassment and discrimination.

Department of Labor regulations state that “[t]ime spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal work hours on a day when he is working constitutes hours worked.” 29 C.F.R. § 785.43 (2007)

A U.S. Department of Labor opinion letter further supports the conclusion that companies should be bound by the actions of their workers compensation administrator.According to the opinion letter, an entity acting on behalf of an employer can bind the employer for purposes of directing medical appointments. The letter explains that “[i]f the employer or the employer’s agent (insurance carrier) arranged for the employee to see a doctor during the employee’s normal working hours, the time spent traveling to and from and visiting the doctor’s office would be compensable hours of work.”

Read a recent case discussing this issue here, and a DOL opinion letter here.

Today there’s a greater opportunity than ever to establish excellence in the human resources field. The choices are enormous. Sometimes they are also paralyzing.

See how you would answer these questions:

1. What do I really want from my HR department or HR career? Is it to eliminate the unnecessary dramas? Dramatically improve the quality of the workforce? Hire as many people as possible in the next six months? Maybe it’s to reduce your workflow so you can spend more time with your family. Just how clear are you about the results you seek to achieve for you and the company?
2. Why do you want this outcome? What are you going to get as a result? Is it time, money, recognition, fame? What’s the “why”?
3. Remember, Yoda said, “There is no try, only do.” What specific activities or actions will you engage in today to make this goal a reality?

At some time everyone might experience the blues or feel down and not quite themselves. But when the bad days start outnumbering the good ones, and an employee begins to have attendance and performance issues, then this employee might have depression. Depression is a serious medical condition that affects nearly 15 million adults each year. It’s one of the top three workplace issues impacting employers each year and costs businesses $83 billion annually (SAMSHA). The symptoms of depression include:

• Persistently sad or irritable mood
• Pronounced changes in sleep, appetite, and energy
• Difficulty thinking, concentrating, and remembering
• Physical slowing or agitation
• Lack of interest in or pleasure from activities that were once enjoyed
• Feelings of guilt, worthlessness, hopelessness, and emptiness
• Recurrent thoughts of death or suicide
• Persistent physical symptoms that do not respond to treatment, such as headaches, digestive disorders, and chronic pain (Source: http://nami.org/)

Depression can be treated: Medication and psychotherapy can rehabilitate more than 80% of those diagnosed with this condition. Diet and exercise can promote a healthy lifestyle to combat the effects of depression. You can provide a number of workplace accommodations to help employees with depression perform their job. Job Accommodation Network (www.jan.wvu.edu ) Lead Consultant Kendra Duckworth, M.S., recommends specific steps for dealing with depression-related problems.

Stamina during the Workday:

• Provide flexible scheduling
• Allow longer or more frequent work breaks
• Let the employee work from home during part of the day or week
• Provide part-time work schedules

Concentration:

• Reduce distractions in the work area
• Provide space enclosures or a private office
• Permit the use of “white noise” or environmental sound machines
• Allow the employee to play soothing music using a cassette player and headset
• Increase natural lighting or provide full-spectrum lighting
• Plan for uninterrupted work time and allow for frequent breaks
• Divide large assignments into smaller tasks and goals
• Restructure the job to include only essential functions

Memory Deficits:

• Allow the employee to tape record meetings and provide written checklists
• Provide typed minutes from meetings
• Provide written instructions and allow additional training time

Difficulty Staying Organized and Meeting Deadlines:

• Make daily TO-DO lists and check items off as they’re completed
• Use several calendars to mark meetings and deadlines
• Remind the employee about important deadlines
• Use electronic organizers
• Divide large assignments into smaller tasks and goals

Difficulty Handling Stress and Emotions:

• Provide praise and positive reinforcement
• Refer to counseling and employee assistance programs
• Allow telephone calls during work hours to doctors and others for needed support
• Permit the presence of a support animal
• Allow the employee to take breaks as needed

Attendance Issues:

• Provide flexible leave for health problems
• Offer a self-paced work load and flexible hours
• Allow employee to work from home and provide part-time work schedule
• Let the employee make up time

The recent California Supreme Court case Lonicki v. Sutter Health focuses on one of the major challenges under the ADA and similar state laws: How do you manage a depressed employee? In this case, a nurse essentially claimed that her job was too stressful. The employer argued that she did not have a medical condition, but rather, the stress that comes with being a nurse. As evidence, they cited the fact that she was able to work as a nurse in a similar job at another hospital on a part-time basis.

Learn more about accommodating depression here.

More than 50 “markets” offer Employment Practices Liability insurance (EPLI), either through stand-alone policies or as an addendum to a Directors & Officers policy.

Here are some trends to look for when reviewing your coverage:

• “All-inclusive wording.” When the first policies were created, they defined the coverages. Now they do just the opposite — they say that they cover all claims except for those explicitly excluded.
• Due to the softening insurance market, prices for EPL coverage are more competitive than ever. The industry is focusing on companies with 500 or less employees. Even if you have fewer than 10 employees, you should consider this coverage.
• Policies are allowing insureds to select their own counsel as long as they meet certain criteria. Negotiate this provision when you’re buying the policy.
• “Prior acts” coverage increasingly is becoming available due to the “continuing harm” nature of many employment practices claims.
• A handful of policies have begun offering wage and hour defense coverage.
• Many carriers provide “worldwide” coverage. This is helpful to companies with operations abroad.
• A few carriers are offering “soft hammer” coverage. For example, if you have $1 million in coverage, but a settlement offer is made at $100,000, the company can usually force you into accepting this settlement, with you paying any expenses above this cap if you don’t. With a soft hammer clause, the company will negotiate and apportion any additional potential liability.
• EPLI carriers remain concerned about “red zones,” including companies in California, large employers, retail operations, restaurants, law firms, auto dealers, and others.
• No reduction in coverage for defense costs. For example, if you have a $1 million policy and it costs $200,000 to defend the claim, the company will not deduct the $200,000 from the $1 million limit for possible future claims.
• EPL carriers continue to limit coverage for reductions in force, mergers and acquisitions. With a downsizing economy, they’re very concerned about age discrimination and class action claims that are related to downsizing.

In conclusion, we believe your company should not be without EPLI coverage. Contact your insurance broker to learn which coverage works best for you.

During recent months I’ve been asked to do a number of workshops on team building. These principles should be considered plain common sense.

• The team comes first. A recent Men’s Health magazine interviewed Navy Seals about what’s critical to their success. They said that the most important thing was an understanding that the team comes first. Because we live in a society that prizes rugged individualism, this can be a difficult concept to fully grasp. Often the most difficult challenge for management is the employee who’s productive, but not a team player. Is it worth keeping the Prima Donna at the cost of destroying the team? That’s the question. You know the answer.
• Teams need leadership and a sense of direction. What are the vision, mission, and goals for the team? Who’s in charge of communicating them and making sure they get accomplished? Is the person in charge a good leader, or just someone with the most experience? Are they motivating or demotivating by nature? Do they spend most of their time praising or criticizing?
• All team members must lead by example. Can you honestly say that you gave it your best today? Are you genuinely caring toward other team members? Are you committed to improving your skill sets constantly? Do you enjoy playing team or would you rather be a solo flier? One of the things I teach is understanding the “processional” effect of our actions. For example, how we treat a team member impacts how they treat clients, customers, and their own family members. Are you fully aware of your processional impact?
• Treat each other with respect. In his book Blink, Malcolm Gladwell talked about how graduate students were able to see the “thin slice” of information that would determine whether the marriage of a couple in therapy would survive or not. Their conclusion: The single most important factor in the chance of survival was whether or not the couples treated each other with respect — even though they disagreed. Having respect toward team members is paramount. It makes no difference whether you’re the head chef or the dishwasher. This means you follow the Golden Rule and treat team members the way you would want to be treated — no matter what their position is.
• Eliminate the fear. What are the fears present in your environment? Perhaps there are new team members and you’re concerned that they won’t respect your “way of doing things.” Perhaps you’re the new team member and you’re concerned that the old team members won’t respect the “best practices” you bring with you. Perhaps the fear is that you’re of a different age, sex, religion, or sexual orientation from other team members. Will they be inclusive of your differences? Are you inclusive of theirs? Perhaps the fear on the team is that if you try to contribute a suggestion, it will be shot down and ridiculed every time. Fact is, every team has its fears. Eliminating them will guarantee increased team work.
• Know what it means to “win.” How are you keeping score? What benchmarks are important to team success? Is it getting the project out on time? Is it increasing client satisfaction? Is it winning some type of excellence award? Are you playing win/win and generating more winners than losers on your team?
• Have you reduced your commitments to writing? We can’t assume that others play team the way we do. Take a look at this month’s Form of the Month: Team Commitments. Tweak this document to address your team needs. Once you do, place it in your employee handbook and then blow it up and put it on your walls.

All of the above is plain common sense. What’s lacking in most environments is the discipline and commitment to following these powerful guidelines.

This updated FMLA form incorporates revisions to the FMLA, including Military Family Leave.

Proposed revisions to the Family Medical Leave Act impact on a few critical areas:

• Definition of a serious health condition. The proposed rules would require that, in order to be a serious medical condition, two or more treatments must occur within 30 days of the start of incapacity.
• The ability to get accurate medical information creates a challenge for employers. The proposed regulations would allow an employer to contact a health care provider directly to authenticate medical certifications. Employers could also require employees to comply with their attendance procedures. The best way to handle authorization under HIPAA remains an issue.
• Incremental leave. There’s an effort underway to set minimum leave standards — say at least one-half day.

We encourage HR That Works users to listen to April’s Webinar on FMLA Traps for the Unwary. We’ll keep you posted once the new regulations go final. You can get more information here.

In Bates v. United Parcel Service, Inc., UPS required all drivers to pass a hearing test approved by the Department of Transportation.

Even though the local drivers were not required to meet the DOT standard, the court said that all UPS should have to prove is whether the hearing tests were related to safe driving and that a reasonable accommodation was not available.

The court did not require the employer to meet a BFOQ (bona fide occupational qualification) standard under Title VII discrimination. This would have been a very difficult standard to apply to an ADA situation.

Lesson learned: If a hiring practice has a “disparate impact” on a protected group you have to use a BFOQ defense. For example, if a physical lifting requirement has a disparate impact on women, you would have to use a BFOQ defense.

Alternatively, if a lifting requirement has an impact on people with lower back problems, you only have to use the standard ADA defense of determining whether the lifting requirements were created to safe conduct and that a reasonable accommodation was not available.

This case discussed complaints made by four female employees of Anheuser-Busch as a result of sexual harassment and retaliation caused by a co-worker during a 10-year period. The first complaints against Bill Robinson began in 1993. He was finally terminated as a result of his behavior in July of 2003. The next month, while investigations into two fires that he caused were going on, Robinson shot his girlfriend and then killed himself. The court’s decision made a number of points that all employers should keep in mind:

• Employers may be held liable for off-premises acts of retaliation under Title VII anti-retaliation provisions.
• A judge or jury may consider similar acts of harassment of which a plaintiff was aware during the course of his or her employment, even if the acts were directed at others or occurred outside of their presence. This evidence can be used to establish a generally hostile work environment.
• A company may be liable for co-worker harassment if its response manifests indifference or unreasonableness in light of the facts the employer new or should have known.
• An employer may be held liable when its remedial response is merely negligent, however well intentioned.
• An employer’s responsibility to prevent future harassment is heightened when it’s dealing with a known serial harasser.
• The best anti-discrimination policy in the world will not help the employer who, rather than fulfill its duty to act on complaints of a serial harasser, lets a known harasser continue to injure new victims.
• Companies that take affirmative steps, reasonably calculated to prevent and put an end to a pattern of harassment — such as personally counseling harassers, sending them letters emphasizing the company’s policies and the seriousness of the allegations against them, and threatening harassers with serious discipline if future allegations are substantiated — are more likely to have been deemed to have responded appropriately.
• Finally, an employer may be liable for co-worker retaliation if this would dissuade a reasonable worker from making or supporting a charge of discrimination, management knows or should have know of the conduct, and fails to act in a reasonable manner.

Read more about this case here.