Tuesday, February 10, 2015

Love has no boundaries—except at work


Some of you may recall that I serve on the editorial advisory board of Workforce Magazine. I also pen a monthly column for the mag. Since we are approaching Valentine’s Day, I’m sharing this month’s timely column. Enjoy.

Look inside >
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Love Has No Boundaries — Except at Work

Monday, February 9, 2015

What does a snowblower have to do with your next employee termination?


We’ve had a robust February of snow in Northeast Ohio, which provided the first excuse of the season to pull my snowblower out of the garage. Since we moved into our house a decade ago, there was not a snow storm that it couldn’t handle. The Sunday newspaper, however, is another story.

Two years ago, we cancelled our Plain Dealer subscription. As working parents of two young kids, reading the paper took a back seat to, well, life in general. The fine folks at the Plain Dealer, however, do not appear to believe us. Each Sunday morning, we awaken to find a four-page “promotional” edition of the paper in the driveway. No amount of phone calls have stopped the annoyance of this weekly driveway spam.

Last Sunday, I awoke to six inches of snow. Perhaps it was because the paper was buried under the blanket of white, or because it didn’t register as a fact important enough to recall, but I did not give the four pages of promo-news a second thought as I pushed the snowblower down my drive. More accurately, I didn’t give it a second thought until I saw a few scraps of paper fly from the chute, followed quickly by the smell of smoke and the abrupt sound of the blades seizing.

“F***ing newspaper,” I yelled!

My wife and I tried, without avail, to dislodge the wet mess of newspaper that had quickly hardened to concrete around and behind the impeller. Knowing that disassembling a piece of heavy machinery is well beyond my pay grade, my wife Googled how to unblock a jammed snowblower. What she read stopped us in our tracks. Apparently, even though the engine is off, and blades blocked, there is a fair amount of tension left in the belt, which would cause the blades to spin when the jam is freed. Since we like having all 10 of our fingers pristinely attached to their respective hands, I pushed the lifeless snowblower back into the garage, and we grabbed our shovels for a long week of pushing and lifting snow.

“What,” you are saying to yourselves, “does this story have to do with employee terminations?”

When you terminate an employee, you cannot act on impulse. When the snowblower jammed, my first impulse  was to do everything possible to unjam it. The joy of my success, however, would have been severely tempered by a hospital trip to reattach my finger(s). The same holds true when you terminate an employee. Without exception, you cannot act out of anger or impulse. Your decisions must be well researched and deliberate. Review the personnel file. Talk to managers and supervisors. Read relevant policies. Research how similar employees have been treated in similar situations. And, if you have any doubt, call your employment lawyer. More often than not, impulse leads to lawsuits.

I’ll leave it to you to decide—between a lawsuit or lost finger—which is the more painful.

Friday, February 6, 2015

WIRTW #354 (the “dad working” edition)


There is only one person that I chose to live with longer than my wife—Rob Schwartz, my college roommate. We shared a doom room, and then an apartment, for four years in Binghamton, NY. It’s no wonder that our world views are so similar. I cannot more highly recommend his newly launched blog, Dad Working. His mission:

There are tons of blogs about the challenges of working moms and I recognize the reality in their struggles, too. I’m hoping to fill the gap for those fathers who also strive and struggle with the expectations of home and work while presenting a new view of what it means to be one of two working parents.

Welcome to the wonderful world of blogging (or, as I call it, my addiction).

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, February 5, 2015

Will Ohio raise its minimum wage?


Chris Rock once said, “You know what it means when somebody pays you minimum wage? … ‘Hey, if I could pay you less, I would.’”

If Ohio Senate Bill 25 becomes law, that minimum in Ohio will go up.

Yesterday, 10 Senators introduced S.B. 25 [pdf], which proposes comprehensive reform to Ohio’s state wage-and-hour laws.

If passed, it would:

  • Raise the minimum wage to $10.10
  • Raise the salary threshold for the executive, administrative, and professional exemptions to $50,000 per year for 2016, and $69,000 per year for 2017 and beyond.

All 10 of the sponsors of S.B. 25 are Democrats. The problem, though, is that the Ohio has 33 state senators, and the other 23 are all Republicans. Thus, this bill has little chance of advancing out of committee, let alone becoming law.

Nevertheless, there a class war waging in this country, with the minimum wage as its front line. Expect this issue to be front and center as we approach the next national election cycle in 2016.

Wednesday, February 4, 2015

Employers seek to halt EEOC’s efforts to drum up plaintiffs for its “Onionhead” lawsuit


You may recall the lawsuit filed the EEOC claiming that a New York employer forced its employees to join a religion called “Onionhead.”

Now, Employment Law 360 reports that the company’s counsel is trying to block the EEOC from reaching out to the company’s employees to seek additional plaintiffs for its lawsuit.

The employers have asked the federal judge hearing the case to block the EEOC from any further “solicitations of Defendants’ current and former employees for participation in the lawsuit.” You can download a copy of the employers’ letter to the court here [pdf].

According to the company, the EEOC’s letters, printed on government letterhead, provided the employees a one-sided description of the case, omitted a statement that liability has yet to be decided, and created the impression that the employee must contact the EEOC.

Decide for yourself.


If the employer is true, the EEOC is going to have issues. A federal agency cannot misrepresent litigation to drum up support among employees. It also cannot provide employees a mistaken impression that they must cooperate.

At the same time, however, employers faced with alleged misconduct like that alleged in the Onionhead lawsuit must tread very carefully so that they do not unlawfully retaliate against the employees by interfering with their participation rights. For example, an employer cannot forbid employees from cooperating with the EEOC, or even dissuade them from contacting the agency.

What should employers do?

  • They can tell employees that it is their choice whether to contact, or cooperate with, the EEOC.
  • They can tell employees to be truthful when talking with the EEOC.
What must employers do? 
  • They must guarantee employees that they will not suffer any retaliation, no matter their choice.
Employers faced with an EEOC investigation should know that the agency is using these tactics, so that they can proactively, and lawfully, respond by delivering the right message to their employees.



Tuesday, February 3, 2015

The internet might be for porn, but not on work computers


I spent yesterday working from home, as Cleveland got socked with nearly a foot of snow and my kids had the day off from school.

While working from home, I came across an article from Crain’s New York Business, entitled, Porn and the snowbound workforce. The article argued that winter storms lead to increased software security violations, including those on company-owned computers that employees are using to work from home, including a spike in malware infections.

[I]ncreased levels of malware infections go almost hand-in-hand with increased traffic to porn sites. Adult-content platform Pornhub reported a 21% increase in traffic from New York City-based users during this week’s storm…. For randier New Yorkers who might have been home with work-provided laptops, the blizzard malware infections could cause more than just an uncomfortable chat with human resources.

Companies should want employees to have the flexibility to work from home during inclement weather. It’s certainly safer than having them traverse icy or snow-covered roads. Moreover, it enables you to capture some of the productivity you would otherwise lose from childrens’ snow days and other weather-related days off. Companies must, however, make it clear to employees that work computers are for work, and not for play, even if the employee is using the computer at home.

Consider the following Telecommuting Principles, from the Emory WorkLife Resource Center:

  • The user’s local IT unit must provide, maintain, and support a computer with an approved Emory configuration defined by the Local IT unit. The configuration must address the Information Security Requirements for Telecommuting Arrangements which includes items such as current security updates and anti-virus capability, removal of administrative rights, proper firewall configuration, and security incident reporting requirements.
  • Telecommuters must use only the Emory provided computer for telecommuting.
  • Telecommuters must protect the computer issued to them and any sensitive data that it might contain.
    • Telecommuters may not store sensitive information on the computer unless authorized to do so, and even then, telecommuters must only store the absolute minimum required.
    • Telecommuters must encrypt or password protect documents that contain sensitive information when possible, and upgrade to Full Disk Encryption when an enterprise solution becomes available.
    • Telecommuters may not transfer sensitive data to non-Emory owned systems or removable media, and they may not allow unauthorized users to use the computer issued for telecommuting.
  • Users must immediately notify their manager and local IT support if a system used to telecommute is lost or stolen or if the system is compromised or suspected of being compromised by a computer virus or hacker.

These types of policies cannot guarantee a malware-free IT infrastructure. They will, however, provide you some sense of security in knowing that your employees are aware of the issue, while at the same time providing you the ammunition you need to support action against a employee who misuses your computers.

Monday, February 2, 2015

Mark this beastly religious accommodation case for the employer


Last Monday, I wrote about a jury verdict against an employer that refused to make accommodation for an employee who objected to the use of the company’s time-keeping hand scanner for religious reasons. In response, one reader commented:

Seems to me that the law should require some sort of reasonableness requirement on the plaintiff. There’s no reason we should have to accommodate every ridiculous whack-a-doodle demand…. “The Mark of the Beast”? Seriously??? We should not have to cater to such nutjobs, and it makes a mockery of our legal/political/economic system to have to do so.

Well, captain_quirk, this one’s for you.

Last week, the 6th Circuit, in Yeager v. FirstEnergy Generation Corp., held that an employer does not have to accommodate an employee’s religious beliefs if those religious beliefs conflict with a requirement of federal law.

When the plaintiff, Donald Yeager, turned 18, he disavowed his social security number. As a Fundamentalist Christian, he believed that being identified by any number, including the federally mandated social security number, was having the “Mark of the Beast.” (Amazingly, Yeager is not alone in this thinking.) FirstEnergy refused to hire Yeager because he would not provide his social security number. Yeager sued, and lost.

Every circuit to consider the issue has [held] that Title VII does not require an employer to reasonably accommodate an employee’s religious beliefs if such accommodation would violate a federal statute. Some courts have [held] that a statutory obligation is not an “employment requirement,” while others have held … that violating a federal statute would impose an “undue hardship.” These dual rationales arrive at the same, sensible conclusion: “[A]n employer is not liable under Title VII when accommodating an employee’s religious beliefs would require the employer to violate federal … law.”

The Internal Revenue Code requires employers such as FirstEnergy to collect and provide the social security numbers of their employees. In this case … FirstEnergy’s collection of Yeager’s social security number is a “requirement imposed by law” and therefore not an “employment requirement.”

Despite this highly sensible decision, I stand by my conclusion from last week’s discussion—much more often than not, requests for accommodations are not the demarcation on a battleground, but the call for a middle ground … unless the request asks you to violate a federal law, in which case all bets are off.

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Friday, January 30, 2015

WIRTW #353 (the “sphere of influence” edition)


Earlier this week, Moodvise published its list of the The 100 Most Influential People in HR and Recruiting on Twitter. I clocked in at a respectable #83. If you are new to Twitter, or just looking for a good list of folks to follow for your 140-character HR nuggets, you should check on Moodvise’s top 100.

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, January 29, 2015

Help EmployeeScreenIQ with its 6th annual Employment Background Screening Survey


Every now again I get to do something nice for people I like. Today is one of those days. EmployeeScreenIQ is conducting its 6th annual Employment Background Screening Survey.

According to the company:

In its 2015 survey, EmployeeScreenIQ again sets out to capture the various influences on employers' hiring practices and how they respond when adverse information is revealed. What type of criminal history or resume discrepancy is egregious enough to disqualify a job candidate? How are employers handling job applicants when red flags arise? The threat of lawsuits over discriminatory hiring practices, complex and confusing "ban the box" laws, resume distortion and social media overreach are among the serious challenges that continue to vex the HR community when conducting employment background checks.

All participants will receive a copy of the published results, along with an entry for a $250 Amazon gift card (not that anyone is bribing you).

The survey is available here.

Given the proliferation of FCRA class action lawsuits, along with EEOC’s stepped-up enforcement against the use of criminal histories in hiring, this survey is well worth your time.

Wednesday, January 28, 2015

Jury verdict teaches that “open door” policies must still comply with EEO laws


There exists an inherent tension  between open-door and other self-reporting policies and the EEO laws.

Consider, for example, a recent $100,000+ jury verdict against a trucking company for disability discrimination. The company maintained a written “Open Door” policy, and an unwritten policy that prohibited any driver who self-reported alcohol abuse from ever returning to driving. The EEOC sued after an employee who availed himself of the Open Door policy to self-report an alcohol addiction was banned from any future driving for the company. Even though the company offered the driver a part-time dock position as an accommodation, the EEOC successfully argued that the employer failed to “make an individualized determination as to whether the driver could return to driving and provide a reasonable accommodation of leave to its drivers for them to obtain treatment,” and that “to maintain a blanket policy that any driver who self-reports alcohol abuse could never return to driving—with no individualized assessment to determine if the driver could safely be returned to driving—violates the ADA.”

Employees need to be able to engage in protected activity without any retribution or other negative consequences. In this case, the employer learned of a disability and failed to engage in the interactive process for a reasonable accommodation. In others, employers might retaliate against an employee who uses an open-door policy to complaint about discrimination or harassment.

Open-door policies are laudable. They foster the communication that is necessary between employees and management necessary for a healthy (and hopefully union free) work environment. With that openness, however, comes responsibility—the responsibility to learn information without retaliating. Employees need to train management so that they know what to do with protected information once they learn it, and how to act without violating any of our EEO laws. Without this training, employers are setting up their open-door policies and programs for a litigation fail.

The full press release about this jury verdict is available here.

Tuesday, January 27, 2015

The FMLA has eligibility limits (unless you tell your employees otherwise)


The FMLA does not provide leave benefits to all employees of all employers. First and foremost, it only covers employers with 50 or more employees. And, only a subset of employees of a covered employer is eligible for FMLA leave.

An employee is eligible for FMLA leave from a covered employer if the employee—
  1. was employed by the employer for at least 12 non-consecutive months;
  2. worked 1,250 hours during the 12-month period preceding the start of the requested leave; and
  3. works at a location where the employer employs 50 or more employees within a 75-mile radius.
Employees who fails to meet any one of these criteria are not eligible for FMLA leave … unless the employer tells them otherwise.

In Tilley v. Kalamazoo County Road Commission (6th Cir. 1/26/15) [pdf], the employer maintained the following FMLA policy:
Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.
The employer, however, denied Tilley’s request for FMLA leave because he did not work at a location that employed 50 or more employees within a 75-mile radius. Based on the employer’s unambiguous policy, however, the court concluded that the employer waived any ability to rely upon the 50-employee threshold.
This is an unambiguous and unqualified statement that Road Commission employees, like Tilley, who have logged 1,250 hours in the year before seeking FMLA leave are covered by the FMLA and are eligible to apply for FMLA benefits…. 
The Road Commission could have qualified its statement concerning employee eligibility by adding that its full-time employees would only be covered by the FMLA if they worked at, or within 75 miles of, a site at which the Road Commission employed at least 50 employees. That is precisely what other employers have done…. 
And we are unwilling to conclude as a matter of law that Tilley was unreasonable in relying on the Manual’s statement that employees in his position were eligible to apply for FMLA benefits. Simply put, a reasonable person in Tilley’s position could fairly have believed that he was protected by the FMLA.
Bottom line? Courts will hold you to your word if you mis-represent FMLA eligibility to an otherwise ineligible employee. If you, as an employer, do not want to go beyond the FMLA’s baseline requirements, you need to check, and then double-check, your leave policies, to make sure you are not promising your way into more coverage than intended.

Monday, January 26, 2015

Should it matter if your employee thinks hand scanners are tools of Satan?


If you’re a long time reader of my blog, you might recall a story I shared a few years ago about a co-worker at one of my high-school jobs, who held some interesting opinions about Lee Iacocca, Satan, and the end of the world. At the time, I made a point about taking the path of least resistance with reasonable accommodations.

Apparently, Consol Energy is not a blog subscriber.

The Pittsburgh Post-Gazette brings us the story of Beverly Butcher Jr., an employee at its Robinson Run, West Virginia, mine, and an Evangelical Christian, who refused to use the company’s hand scanner to clock in an clock out, because he believed it would imprint him with the “mark of the beast.” Instead of working with Butcher, or providing him an alternative way to track his time, the company mandated his use of the hand scanner. He quit, the EEOC sued on his behalf, and, last week, a federal jury ruled in his favor, awarding him $150,000 in compensatory damages on his religious discrimination claim. Later this year the court will rule on back pay, front pay, punitive damages, and attorneys’ fees.

Whether or not an employee is entitled to a religious accommodation is not dependent upon whether or not you happen to agree with the employee’s religious beliefs. Instead, it hinges solely on whether the beliefs are sincerely held, and, if so, whether you can provide the accommodation without it imposing an undue hardship. While this employer could make a credible undue-hardship argument based on the need for accurate time tracking, and uniformity among employees, it it worth it. Denying the requested accommodation—not using the hand scanner and tracking time in and time out with a different tool—is not worth the headache and associated costs of a federal lawsuit (verdict included).

Requests for accommodations (whether for religious or disability purposes) are not the demarcation on a battleground. Instead, they are a call for a middle ground. Employers need to recognize this truth, and starting wars that simply are not worth fighting.

Friday, January 23, 2015

WIRTW #352 (the “rock hard” edition)


In my never-ending quest to be an employment lawyer and manager for my 8-year-old daughter’s burgeoning rock career, I bring you 4:50 of melt your face off rock and roll from last weekend’s School of Rock Joan Jett show. That’s Norah killing the lead guitar on “You Got A Problem,” and closing the show with “Bad Reputation.”

My personal favorite part—Norah’s demure, “Thank you very much / Have a good afternoon” after screaming about her bad reputation. Who said polite manners and rock ‘n’ roll don’t mix?

You can check out the repeat performance tomorrow, January 24, at 1 pm at the Music Box Supper Club.

Here’s what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, January 22, 2015

Why performance reviews matter in employment litigation


According to Employment Law 360, a federal judge has indicated that he will likely deny the motion for summary judgment Deutsche Bank intends to file seeking the dismissal of a sex discrimination lawsuit brought by one of its former vice presidents.

The lawsuit alleges that bank “mommy-tracked” the plaintiff, a 14-year employee with a strong performance history, and ultimately fired her. Her lawyer argued to the court that her strong history of performance reviews demonstrates pretext in the bank’s decisions regarding her performance. In response to the bank’s counter-arguments about her performance (which included an argument that her positive reviews resulted from an “easy grader”), the judge responded, “It’s all sounding really fact-y to me.”

Folks, performance reviews matter. They not only matter in managing your employees during their employment, but they also matter in defending lawsuits about their employment. If you plan on terminating an employee on performance, you need to have the goods to back it up. What should you be doing before the termination? Checking the reviews to make sure the paper trail supports the poor-performer argument. If it doesn’t, you best have a solid explanation as to why. Otherwise, your termination will start to smell not only “fact-y”, but also possibly “pretext-y.” The last thing you want in a discrimination case is for your decision to have the scent of pretext.

Wednesday, January 21, 2015

New anonymous workplace app raises big workplace issue


Have you heard about Memo? It an iPhone app that allows individuals to post anonymous comments, both positive and negative, about their employers to a specific group page about the company. As you could imagine, it’s the negative posts that will get the lion’s share of attention.

Here’s what a typical company-bashing comment on Memo looks like.


According to Quartz.com, Memo has already “received two cease-and-desist letters, two companies have blocked emails from Memo hitting their servers, and three companies have written memos to employees about the app.”

I want to address the latter—companies that, via policy, fiat, or otherwise, try to stop their employees from using Memo.

As you should know, federal labor law gives employees the right to engage in protected, concerted activity—that is, discussions between or among employees about wages, hours, and other terms and conditions of employment. Employees’ discussions, for example, about an open-door policy, would be a textbook example of protected concerted activity.

Federal labor law prohibits employers from retaliating against employees for engaging in protected concerted activity. Retaliation isn’t Memo’s biggest risk because its posts are (supposedly) anonymous. However, federal labor law also prohibits employers from maintaining or enforcing policies that could chill employees’ right to speak about terms and conditions of employment.

Thus, if you think you can legislate Memo (or other similar apps) out of your workplace, you might want to think again. The NLRB will likely hold a very different opinion about the rights of your employees to talk about your company, anonymously or otherwise.

Tuesday, January 20, 2015

Old laws meet new technology: sexual harassment via social media


Last week, the EEOC held a public meeting on workplace harassment. The most interesting testimony was provided by Jane Kow, of HR Law Consultants, who spoke about the impact of harassment on the modern workplace. One of the key areas she covered was the intersection of workplace harassment and social media:
The ease and speed of posting or responding to the proliferation of messages and images on social media—sometimes by employees at the 11th hour, right before bed, in 140 characters or less, and oftentimes without aforethought—has spawned employee complaints of harassment, defamation, violation of a right to privacy and a host of other claims. None of this was even imaginable in 1964 when Title VII was enacted (or in 1991 when it was amended). But employers must now interpret an EEOC guidance that was written and cas es that were decided by courts in the old millennia to determine how to apply these rules to regulate conduct in the new workplace of the present and future, transformed by these technological advances. 
Employers are now grappling with how to lawfully regulate employees’ text messages, blogs, and social media activity in the face of potential complaints from co-workers about harassing comments posted or images shared publicly.  
What does this mean for your business. The workplace's boundaries no longer begin a 9 and stop at 5. Technology connects employees to each other 24/7. This added connectivity creates opportunities for greater employee engagement and stronger workplace communities. It also creates opportunities for bad actors to do bad things, like harassment. It's important for employers to keep in mind that agencies and courts will apply the same rules to Facebook harassment as they would to face-to-face harassment. If they aren't treating any differently, neither should you.

Monday, January 19, 2015

A few from the archives for MLK Day


Today is Martin Luther King Jr. Day.

Race relations have been particularly scrutinized over the past few months, with Ferguson and its fall out around the country. Thus, it is more important than ever to pause and think about Dr. King, and the lessons of inclusion and respect to be learned from his life and untimely death.

Friday, January 16, 2015

WIRTW #351 (the “conciliation” edition)


We’re supposed to assume complete good faith on the government’s part and complete bad faith on the part of employers?

Chief Justice John Roberts asked this question of Assistant Solicitor General Nicole Saharsky during oral argument earlier this week in Mach Mining v. Equal Employment Opportunity Commission, a case that will test the limits of how far the EEOC has to go to try to conciliate a charge of discrimination prior to filing an enforcement action in court.

The oral argument did not go so well for the EEOC. Irin Carmon at MSNBC, Jess Bravin at the Wall Street Journal, and Julie Goldscheid at SCOTUSblog have the details.

Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, January 15, 2015

Why retaliation claims should keep you up at night


In early 2009, Aker Plant Services terminated the employment of Tommy Sharp as part of workforce reduction. When Sharp asked his supervisor why the company chose him, as opposed to his less experienced, less senior co-workers, the supervisor replied that the company decided to keep younger employees who could stay with the company longer. Sharp then sued for age discrimination.

While Sharp’s age discrimination lawsuit was pending, a staffing agency attempted to place him for a temporary position at Aker. The company, however, immediately rejected Sharp’s candidacy,  notifying the staffing agency, via email, as follows:

Yes, we do know Tom. He does acceptable work as a designer, but he violated a DuPont mandate on the use of electronic recording devices on company property when last employed here. There are combustible materials in the plant that can potentially be ignited by the use of cell phones, recorders, cameras, etc… [sic] DuPont maintains a zero-tolerance approach to safety violations on its property so, unfortunately, we will not be able to consider Mr. Sharp for this role.

Sharp then brought a second suit, this time for retaliation. The district court dismissed the retaliation claim, concluding that the 15-month gap between Sharp’s initial notification of an intent to sue for age discrimination and the email to the staffing agency severed any potential causal connection between the two events.

The 6th Circuit, however, in Sharp v. Aker Plant Services Group (6th Cir. 1/13/15) [pdf], disagreed:

Considering the evidence in the light most favorable to Sharp, one could reasonably infer that Aker declined to rehire Sharp in retaliation for his then-pending discrimination action. Yes, it was fifteen months later…. Aker terminated Sharp before he filed his age-discrimination lawsuit, and therefore could not retaliate against him in any manner until he returned seeking temporary employment a year and a half later. Evidence showing that an employer had no opportunity to retaliate sooner supports a finding of temporal proximity.

Retaliation are the most dangerous claims that employers face. This employer likely felt safe refusing Aker’s placement because of the 15-month gap. That time gap, however, was tempered by the fact that the company no longer employed Aker, and its next interaction with him was the claimed act of retaliation. When an employee engages in protected activity, you must treat that employee with added care, as any act that could dissuade an employee from engaging in protected activity could give rise to a retaliation claim.

Wednesday, January 14, 2015

Beware the pregnancy accommodation claim


On Monday I published my list of the five biggest issues employers need to watch and manage in 2015. I listed “pregnancy leave rights” as number five. In reality, though, that issue could easily have been number one.

Consider that earlier this week, USA Today told the story of a North Carolina nursing assistant, who claims that she was forced to resign from her job after her employer refused to provide light duty to accommodate the medical complications of her pregnancy. According to the story, “The nursing home regularly provided ‘light duty’ to workers unable to lift, Cole says in the complaint. On light duty, nurse assistants can feed and clean residents and assist with oxygen tubing and nebulizers, she added.

This issue is not going away. Charges filed with the EEOC alleging pregnancy discrimination have increased by nearly 50% over the past 15 years. Moreover, women comprise nearly half of the workforce, and 75% of them will become pregnant at some point. Couple those stats with the fact that 40% households with children have mothers who are either the sole or primary source of income for the family, and you can see why this issue is so critical to the American worker (and, consequently, the American employer).

Yet, this should be a non-issue for most employers. Just this past summer, the EEOC issued enforcement guidance that affirmed my long-held belief that employers may have to provide light duty for pregnant workers, and must provide the same accommodations to pregnant workers as to other workers with similarly disabling medical conditions. This rule will impose a light-duty obligation on most employers.

Ask yourself—

  • Have I ever provided light duty to expedite the return-to-work of an employee with a work-comp claim?
  • Have I ever provided light duty to an employee as an ADA reasonable accommodation?

If you answer “yes” to either of these questions (and most employers will), then you cannot deny the same light duty to a pregnant worker.