Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
The week started with the post on Sunday 11/16/14 that contained 8 employment practice tips for your small business. What are some of the tips? Relative to hiring, use employment agreements, indluing non-disclosure provisions, and be specific. Have a handbook or policy manual. Know the law. Other tips are in the post.
TAKEAWAY: The last tip says it all: consult an expert (employment attorney) to help keep you on the straight and narrow (legal) road.
The post on Monday 11/17/14 was about simple math: not using a free coach + firing the employee = $75K failure to accommodate settlement. That was the amount Kaiser Permanente agreed to pay to settle a suit on behalf of a former food service worker who was denied a free job coach (which would have allowed him to properly train and learn the duties of his job). Yes, the employer refused to accommodate the employee’s request to take advantage of free training.
TAKEAWAY: Employers must engage in the interactive process when an employee requests accommodation; if the employee suggests something, especially if it is at no cost to the employer, let the employee try it.
On Tuesday 11/18/14 the post was a reminder: don’t tell an employee with medical clearance that s/he should be at home. Not only is this foolish (as there is then one less person doing the employer’s work), but it is also in violation of the ADA. This could implicate either the “record of” or “regarded as” prong. In the case here, the employee was a title examiner; after diagnosis with end-stage renal disease, she was released to work on a part-time basis (to permit her to attend dialysis). The employer required her to work full-time. She then had surgery so she could undergo dialysis at home; then, after about a one-week adjustment period, she began full-time hours. Shortly after that, she was laid off due to an alleged lack of work. She questioned the reason and was told that she “needed to be at home taking care of herself.”
TAKEAWAY: If an employee is medically cleared to return to work, let the employee come back. Don’t second-guess the medical release.
On Wednesday 11/19/14 the post was about a woman who was fired the day after complaining about a co-worker touching her buttocks. If this doesn’t sound like retaliation to you, do not pass GO … According to the complaint filed by the EEOC against Daimler Trucks North America, a male co-worker asked Holt if he could borrow her wrench, which was in her back pants pocket. While she was bent over a truck on the assembly line, he reached into her pocket, taking the wrnech while also rubbing her buttocks. She complained and the next day was fired. We will have to wait and see how this plays out (but I’m betting on a settlement).
TAKEAWAY: Employers must take complaints of harassment seriously. Even if it turns out that the complaint was unwarranted, be careful of taking adverse action against the person who lodged the complaint or you, the employer, may well be sitting in the (EEOC’s) bulls-eye.
The post on Thursday 11/20/14 was about an employer suing the EEOC for information on a discrimination claim. Sound backwards? Yep. Here, Texas Roadhouse requested public records that might shed light on the origin of the EEOC’s age-discrimination case against the restaurant chain. The EEOC had sued Texas Roadhouse 3 years ago, alleging it discriminated against those over 40 for front-of-house positions. Texas Roadhouse asked for records related to “the genesis of the (EEOC) investigation,” the amount of taxpayer money spent on the effort and statements by the EEOC representatives to the media about the case.
TAKEAWAY: While the EEOC can bring suit, an employer might well be entitled to information in the EEOC’s possession that is relevant to the case.
Next, the post of Friday 11/21/14 instructed on beyond essential functions – the role of reassignment in accommodation. If a disabled employee cannot perform the essential functions of the job, even with accommodation, should you consider reassignment? First, remember that an employer does not have to create a new job as part of the accommodation process. However, if there are open positions, and barring violation of an existing, valid seniority system (under a collective bargaining agreement), the employer must consider transferring the employee to one of the open positions if s/he can perform the essential functions of that job, with or without accommodation. The reassignment does not need to be a promotion but, preferably, will be a lateral move. If the employer has a policy of hiring the most qualified candidate for a position, and the disabled employee is not the most qualified, then you are at a roadblock becasue federal courts in PA are split on whether the employer must reassign the employee as an accommodation or if it can hire the most qualified employee regardless.
TAKEAWAY: A qualified disabled employee does not need to request reassignment as a reasonable accommodation, but an employer must look to same as part of its obligation under the ADA’s interactive process.
Finally, in the post yesterday 11/22/14, we talked about there being no place in the work environment for race discrimination. What happened? Another suit by the EEOC, this time against Huddle House in NC. The allegations are that, among other things, members of Huddle House’s management team regularly referred to two black employees as “ghetto”, “hood”, “hood rat”, “Huddle ho’s” and used the “N-word” when they visited the restaurant.
TAKEAWAY: There is no place for this type of behavior. Period.
York, Pennsylvania 17403