The uselessness of the Working Families Flexibility Act

WorkplaceHorizons has tipped me off to a recently introduced Senate bill, the Working Families Flexibility Act.

This bill, sponsored by Senators Obama and Clinton among others, would provide employees with the right to request, once every 12 months, that his or her employer modify the employee's work hours, schedule, or location. The Act would then require the employer to meet with the employee to discuss the requested modification within 14 days. Within 14 days of that meeting, the employer would have to provide the employee with a written decision regarding the requested modification, stating the grounds for any denial and any proposed alternative modifications. If the employee is still dissatisfied with the employer's decision, the bill would allow the employee to request reconsideration and require the employer and the employee to meet to again discuss the request. The Act covers employees who work at least 20 hours per week and 1,000 hours per year, and employers with 15 or more employees.

The Act also would make it unlawful for an employer to interfere with an employee's attempt to exercise his or her rights under the Act or to retaliate against an employee. Aggrieved individuals could file a complaint with the Administrator of the Wage and Hour Division of the Employment Standards Administration of the United States Department of Labor. Violations could result in civil fines of up to $5,000 per violation and equitable relief such as reinstatement, promotion, back pay, and changes to terms and conditions of employment.

Last I checked, the employer sets the terms and conditions of employment, especially on the core issues of work hours, schedules, and locations. Do employees really need federal legislation to go to a supervisor and ask for such an accommodation? Will this legislation change employers' responses to reasonable requests? Won't employers still guide their responses by the specific needs of their businesses? Further, as long as an employer goes through this interactive process, where is the harm to the employee, who is granted no right to any modification? However, every time an employee's request is rejected, he or she will scream interference or retaliation to the DOL, creating an administrative nightmare. Talk about worthless legislation. This bill is currently sitting in the Senate Committee on Health, Education, Labor, and Pensions, where I hope it dies a quick death.

Department of Labor publishes new FMLA poster for Military Family Leave Amendments

On January 28, President Bush signed into law the National Defense Authorization Act for FY 2008. Section 585(a) of that Act amends the FMLA to provide eligible employees working for covered employers new leave rights related to military service. Because of these amendments, the Department of Labor has published an insert to its FMLA poster that all employers should add to their compendium of workplace postings.

Common stereotypes to avoid during job interviews

Yesterday, we took a look at some general dos and don'ts to keep in mind when conducting job interviews. Today, we'll delve a little deeper on the same topic, and examine some unconscious stereotypes that can unwittingly taint the interview process

The following are some examples of general stereotypes that could unintentionally pervade an interview and create liability problems under the employment discrimination laws:

• Stereotypes in the advertising for candidates (i.e., "young grad").
• Applicant's appearance makes him/her seem unable to do the job.
• Not hiring or promoting married women because they are not "primary earners".
• Refusing to hire or promote pregnant women, unwed mothers, or women with pre-school age children.
• Minimum height and weight requirements.
• People with disabilities and women will be absent more than other workers.
• Older workers have "peaked" or run out of gas therefore do not hire or promote.
• Younger people have high energy levels and are very open to learning new technology.
• She was "macho", needs to take a course in charm school. She should walk more femininely, and talk more femininely.
• Disabled individuals should be deemed candidates for short term employment only.
• Assuming women don't have physical strength.
• Women and minorities cannot do a job or do not want certain jobs.
• Candidates who are shy during the interview, will not perform well on the job.

Some of these examples are more obvious than others. Educating interviewers about yesterday's and today's pointers will go a long way towards preventing unconscious biases from tainting an interview and making what could have been an otherwise lawful hiring decision appear unlawful.

Jury award to alleged harassers illustrates importance of internal investigations

A Los Angeles jury has awarded $1.6 million to two white fire department captains suspended after a black firefighter they supervised had his meal laced with dog food. The captains alleged that they were made scapegoats for the misconduct of a Latino firefighter who placed dog food in the spaghetti dinner of a black coworker. The lawsuit centered on their claim that they were discriminated against because they are white, specifically that the fire department never conducted a formal investigation of the incident and disciplined them anyway under political pressure. The Los Angeles Times quotes a 34-year department veteran, "When it comes to a minority -- female or male -- and there's the word 'discrimination,' everybody runs and hides and puts their heads in the sand. The department is afraid to look at these things fairly."

Because we are so concerned about being fair to the victim, we often forget that the accused are entitled to same degree of fairness in an investigation. Just as a failure to reasonably remedy harassment can create liability problems, so can unjustly disciplining or terminating a wrongfully accused employee. Internal investigations must be conducted thoroughly, fairly, and impartially to avoid presenting liability problems from any of the involved parties.

Employers must allow time off for employees to vote

A reader asked whether Ohio employers are required to provide employees time off to vote - a timely question given tomorrow' presidential primary. Ohio Revised Code section 3599.06 provides:

No employer, his officer or agent, shall discharge or threaten to discharge an elector for taking a reasonable amount of time to vote on election day.... Whoever violates this section shall be fined not less than fifty nor more than five hundred dollars.

Hourly employees do not have to be paid for the reasonable amount of time off they take to vote. To avoid jeopardizing a salaried employee's exempt status, those employees should not be docked.

A quick LEXIS search did not reveal any cases in which an employee claimed a wrongful discharge based on a termination in violation of 3599.06. It is unclear whether the $50-$500 fine sufficiently addresses the public policy so that the termination would not place the public policy behind the statute in jeopardy. The issue muddy at best, such that firing a employee for taking a marginally reasonable amount of time off to vote would be a high risk termination that very well might have to be defended in court.

Avoid hidden interviewing traps

Today's BLR HR Daily Advisor is entitled, "Help, They Made Me a Supervisor — 9 Disastrous Mistakes New Supervisors Make.":

Pity the new supervisor. Sometimes they do the wrong thing, because they think they have to do something, and sometimes they do nothing when it's critical to do something. We'll cover nine typical types of trouble they get into today.
1. Hiring
Hiring gets to be second nature after a while, but it's a tricky matter at first. Overeager new supervisors think they should find out all they can about the candidate, but don't realize that many questions are off limits—questions about race, religion, disability, and marital and family status, among others.

The fact is that many interview questions may seem innocuous enough, but may create serious discrimination problems. The following is just a sample of some exemplar questions that are problematic, as compared to legitimate questions to extract lawful information:
Age

• When did you graduate high school?
• How old are you?
• How many years until you plan to retire?
• How many years seniority did you have at your prior company?

-vs-

• Can you submit a birth certificate or other proof of age if you are hired?
• Are you over 18? [work eligibility]

National Origin

• What county are you from?
• That is an interesting accent, where were you born?
• Where were you or your parents born?

-vs-

• Are you eligible to work in the United States? [work eligibility]

Criminal Records

• Have you ever been arrested? [race]

-vs-

• Have you ever been convicted of a crime? [honesty, qualifications]
• Caution, however, that the EEOC may even find this question illegal. See EEOC targets use of arrest and conviction records

Disability

• What is your medical history?
• Do you have any medical conditions or disabilities?
• How will they affect your job performance?
• Have you ever filed a workers' comp claim?
• Do you have a history or alcohol or drug addiction?
• What medications are you taking?

-vs-

• Do you know of anything that would limit your ability to perform the essential functions of this job, and if so, what accommodations can we make that would enable you to perform those functions?
• How would you perform this particular job task?

The following are some additional considerations stereotypes to keep in mind when interviewing members of protected classes:

• Ask questions that are relevant to the job itself. For example, do not ask an applicant for her opinions on birth control, abortion, women's lib, etc.



• Be careful not to draw assumptions about women's competence based on her soft voice or feminine appearance or attire.



• Be professional and consistent in addressing men and women. If using first names, do so for all candidates.



• Avoid flirting, patronizing, or making sexual/ethnic jokes during the interview.



• Avoid bringing up stereotyped prejudices: women shouldn't travel alone; they are too emotional; they aren't aggressive enough. Don't tell negative stories about former women employees.



• Don't go to the opposite extreme by boasting about your liberation, by pointing out how fair minded you are, or by giving an instant replay of every female or minority success story you know.



• In making a selection or recommendation, avoid making assumptions such as the following: (i) Supervisors or managers might prefer men or employees of certain ethnic/racial origins; (ii) Clients or customers might not want to deal with women or minorities; (iii) Women's work might lack credibility; (iv) The job might involve unusual working conditions that would disqualify the applicant.



• When interviewing people with disabilities don't ask: "What happened to you?" or "How will you get to work?"



• Do not place undue emphasis on conditions of employment (such as travel, heavy lifting, long hours, etc.) in hope of discouraging the candidate and getting him or her to withdraw from the competition.



• If asked, give accurate information about the number of women or minority employees already in the organization. If a candidate asks, and if you don't have women or minorities in your own department, then arrange for the person to meet other women or minority staff members. Do not assume that this person will necessarily want to meet other women or minority employees.



• If you're going to discuss the town or city, mention everything and do not try to over-emphasize the town's aspects as a family place in which to live and bring up children.



• In general, avoid references to a candidate's personal happiness (i.e., social and/or sexual). Don't assume that your town or city is not the place for a single person or for minorities.



• Obviously, do not indicate that you’re interested in hiring a women or minority person as a statistic to improve your department’s Affirmative Action/Equal Employment Opportunity profile. It's unlawful to apply different standards based on an applicant's sex or minority status.



• Don't ask the applicant about what kind of accommodation(s) he or she may need for the job until after the interviewer has established that the applicant is qualified for the job and is considering that person for employment. You can, however, explain what the interviewing and hiring process involves and ask all applicants whether they will need a reasonable accommodation to participate in any part of the process itself.
  
• Treat the applicant like an adult; don't be patronizing.



• If an applicant has an obvious disability or discloses that they have a disability during a job interview, you cannot ask about the nature or severity of the disability. You can discuss the job functions and whether the person can perform the functions with or without an accommodation.



• Accommodations for interviews must be provided.
  
• Citizenship requirements or preferences may be unlawful under Title VII if they have either the purpose or effect of discriminating against individuals because of their national origin.



• Be careful how applicants with disabilities are evaluated. Do not make judgments based on communication skills of people with hearing and speech impairments.
  
• Be sensitive to cultural differences: (i) Do not assume mispronunciation of English as a lack of education; (ii) Do not interpret silence as inability or unwillingness.

These lists give some guideposts to avoid liability. They are not meant to be exhaustive. The general rule of thumb is that unless you are absolutely sure that an interview question is 100% job-related, just don't ask it. Stick to the job requirements and how a candidate's work-related background fits with those requirements.
Tomorrow, we'll take a look at some general stereotypes that can unwittingly pervade the interview process and create problems for the unaware interviewer.

Special considerations for employment of veterans with service-connected disabilities

In Ohio, two laws apply to the employment of veterans: the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides reemployment rights to returning veterans, and Ohio's ban on military status discrimination, which goes into effect on March 18. If a returning veteran is injured, though, another law might come into play, the ADA. Earlier today the EEOC published guidance for employers on how to handle veterans with service-connected disabilities under the ADA. The following summarizes the EEOC's key points:

How does USERRA differ from the ADA?

USERRA protects the reemployment rights of those who leave their civilian jobs to serve in the uniformed services. The ADA prohibits employers from discriminating against qualified individuals with disabilities with respect to hiring, promotion, termination, and other terms, conditions, and privileges of employment. The ADA also prohibits disability-based harassment and provides that, absent undue hardship, applicants and employees with disabilities are entitled to reasonable accommodation. USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment in becoming qualified for a job.

Is a veteran with a service-connected disability automatically protected by the ADA?

No. The impairment must meet the statutory definition of a "disability" under the ADA, meaning a person who (i) has a physical or mental impairment that substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment, and who otherwise meets the employer's requirements for the job and can perform the job's essential functions with or without reasonable accommodation.

May an employer ask if an applicant is a "disabled veteran" if it is seeking to hire someone with a service-connected disability?

Yes, if the employer is asking the applicant voluntarily to self-identify for affirmative action purposes. Otherwise, employers generally may not ask for medical information from applicants prior to making a job offer.

What steps should an employer take if it asks an applicant to self-identify as a "disabled veteran" for affirmative action purposes?

If an employer invites applicants to voluntarily self-identify, the employer must indicate clearly and conspicuously (i) that the information requested is intended for use solely in connection with its affirmative action obligations or its voluntary affirmative action efforts; and (ii) the specific information is being requested on a voluntary basis, it will be kept confidential in accordance with the ADA, that refusal to provide it will not subject the employee to any adverse treatment, and that it will be used only in accordance with the ADA. Any information collected must be kept separate from the application to ensure confidentiality.

May an employer give preference in hiring to a veteran with a service-connected disability over other applicants?

Yes. The ADA prohibits discrimination "against a qualified individual with a disability because of the disability." The law neither prohibits nor requires affirmative action on behalf of disabled individuals. Therefore, an employer may, but is not required to, hire a qualified individual with a disability over a qualified applicant without a disability.

What types of reasonable accommodations may veterans with service-connected disabilities need for the application process or during employment?

Some examples of possible reasonable accommodations to consider include: written materials in accessible formats; recruitment fairs, interviews, tests, and training held in accessible locations; modified equipment or devices; physical modifications to the workplace; permission to work from home; leave for treatment, recuperation, or training related to the disability; modified or part-time work schedules; a job coach; reassignment to a vacant position.

How does an employer know when a veteran with a service-connected disability needs an accommodation?

Usually, the reasonable accommodation process begin with a request by the employee or someone else on his or her behalf. The request does not have to mention the ADA or use the term "reasonable accommodation" and simply can be an indication that the employee needs a change for a reason related to a medical condition. A request for reasonable accommodation is the first step in an informal interactive process between the individual and the employer. That process usually involves determining whether the employee actually has a "disability" Employers should also ask what is needed to do the job.

May an employer ask a veteran with a service-connected disability whether a reasonable accommodation is needed if none has been requested?

It depends. During the application process, an employer may explain what the hiring process involves and ask all applicants whether they will need a reasonable accommodation to participate in any part. In addition, if an employer reasonably believes that a veteran with an obvious service-connected disability (such as blindness or a missing limb) who is applying for a particular job will need a reasonable accommodation to do that job, the employer may ask whether an accommodation is needed and, if so, what type. Once a veteran with a service-connected disability has started working, an employer may ask whether an accommodation is needed when it reasonably appears that the person is experiencing workplace problems because of a medical condition.