Archive for October, 2009

ARE YOUR POSTERS UP TO DATE?

Note, the EEOC changed its link.  The new link is below. (Zo 11/12/09)

When we were kids my friends and I had posters all over our bedrooms.  The Detroit Tigers and of course Farrah Fawcett, I even had a couple of fuzzy black light posters, remember them?  That’s not the kind of poster we are talking about now, sorry.

You need to update your “Equal Employment Opportunity is the Law” poster (exciting, right?).  The new EEO posters reflect the passage of the Genetic Information Nondiscrimination Act of 2008, (GINA) which is effective November 21, 2009. The revised poster also includes updates from the Department of Labor.

There are a couple of ways to comply with the new posting requirements, a supplement to the EEOC’s  September 2002 “EEO is the Law” poster or OFCCP’s August 2008 “EEO is the Law” poster posted alongside those posters or a brand spanking-new poster all together.  

You can find more information and get posters at http://www1.eeoc.gov/employers/poster.cfm

NO MORE MONKEY BUSINESS

“Service animals are animals that are individually trained to perform tasks for people with disabilities – such as guiding people who are blind, alerting people who are deaf, pulling wheelchairs, alerting and protecting a person who is having a seizure, or performing other special tasks. Service animals are working animals, not pets.”

U.S. Department of Justice, Civil Rights Division, Disability Rights Section., ADA Business Brief, http://www.ada.gov/business.htm#Anchor-ADA-11481

Just so you know, the Justice Department is the government agency tasked with enforcing Title III of the ADA. Title III deals with, among other things, access to public places. So, when the Justice Department defines what a service animal is, it has an impact on what animal you can bring with you into the store, theater, barber shop or on the bus. It might also spill over into the workplace, because the EEOC has not defined service animal but it is clear that bringing a service animal to work just might be a reasonable accommodation.

“So what?” you say, Bob gets to bring his dog to work. No one can have a problem with that right?  Not so fast my friend. What if Bob wants to bring his ferret to work or his boa constrictor or his monkey?  “Never happen!” you say! Want to bet.  In just the last couple of months there have been news stories about people denied access to public places with just these kinds of animals.  You can see them at:  http://www.wltx.com/news/story.aspx?storyid=79946&catid=35 (ferret in the mall); http://www.tdn.com/articles/2009/10/19/breaking_news/doc4adc801305644061734709.txt (5 ft. boa constrictor in Burger King); http://www.news-leader.com/article/2009910230358(Monkey in Wal-Mart). 

 So, in 2008 the DOJ announced plans to modify the definition of what can and can’t be a service animal:

 Proposed revisions published in the Federal Register (PDF) would exclude not only snakes and other reptiles, but rabbits, farm animals, amphibians, ferrets, rodents and wild animals including monkeys born in captivity, according to the newspaper. They would also eliminate from the definition of service animal creatures who simply provide emotional support, comfort or companionship.

 http://www.abajournal.com/news/isboaconstrictoraserviceanimalproposeddojstandardsaysno/

But, after the DOJ got pummeled with angry comments, the Obama administration delayed implementation of the proposed regulations until its team of civil rights experts could look at the issue. So?  Is it possible that some bureaucrat may decide that I have to eat my linguine next to a monkey? Or worse, that the guy in the next cubicle can bring his service spider to work if some doctor is willing to certify that it provides him comfort? You may find it strange that a big strapping guy like me is afraid of spiders, but I am terrified of them and frankly, monkeys creep me out. I’d rather not have either sitting next to me at work or while I watch a movie or while I eat.  And I don’t want to have to explain to an angry group of employees why Bill gets to bring his boa constrictor to work. What happens to Sally’s ferret when that sucker gets loose in the office?  Nothing but trouble.

 I have just one thing to say to our friends and neighbors in D.C.  Really, no more monkey business.

CONGRESS FIGHTS OVER EMPLOYEES RIGHTS

Seems as though the fight over the method by which employees will select (or have thrust upon them) union representation has taken a little detour.  We all know by now that the much ballyhooed and completely misnamed Employee Free Choice Act is stalled in Congress.  Despite my predictions to the contrary, the thing just does not seem to move.

According to the Washington Wire, a blog of the Wall Street Journal, which you can find at http://blogs.wsj.com/washwire/2009/10/21/nlrb-nominees-gets-mixed-news-from-senators/ the Senate is now fighting over one or the President’s nomination to the National Labor Relations Board.  Craig Becker has served as an associate general counsel to both the SEIU and the AFL-CIO.  He and Mark Pearce were the choices of the Democrats to fill two of the three vacant NLRB seats.  Brian Hayes a former Republican Senate staffer is the choice of the Republicans for the third.  All three were approved by the Senate Health, Education, Labor and Pensions Committee chaired by Senator Tom Harkin of Iowa.  Mr. Pearce and Mr. Hayes were unanimously approved and Mr. Becker was approved by a 15-8 vote.  All three will should now go to the Senate floor for confirmation.

But not so fast.  Seems several business organizations, including the U.S. Chamber of Commerce, the National Association of Manufacturers and the National Federation of Independent Business among others oppose the nomination of Mr. Becker.  So, Senator John McCain placed a “hold” on Mr. Becker’s nomination blocking a vote on confirmation in the full Senate.

How come you might ask is there so much opposition to Mr. Becker and not Mr. Pearce, also a choice of the Democrats?  Well that is where the EFCA comes in.  Mr. Becker has a history of written work.  These business organizations and presumably Senator McCain (or at least his staff) have read that written work and are troubled, suggesting that it indicates that Mr. Becker might try to do by NLRB decision what the Democrats have not been able to do by legislation, namely do away with secret ballot election.  According to the Washington Wire “The business group [the U.S. Chamber of Commerce] says [Mr.] Becker’s written positions have been well outside the mainstream and they fear he’d disrupt the “delicate balance” in current labor law to disadvantage employers.”  Presumably the nomination will eventually go through, despite the hold and Mr. Becker and the rest of the Board will be able to vote to change long standing NLRB procedures for conducting elections.

So tell me again where the free choice is in all this?

ARE YOU TREATING YOUR EMPLOYEES LIKE FISH?

I read a great article in the New York Times today.  It is called For Fish in Coral Reefs, It’s Useful to Be Smart.  See http://www.nytimes.com/2009/10/20/science/20creature.html?hpw

It seems that fish can be taught!  No kidding. According to the Times:

“To test the ability of fish to learn to discriminate shapes, a research team led by Ulrike E. Siebeck at the University of Queensland in Brisbane, Australia, trained damselfish to feed from a feeding tube to which they attached a variety of visual stimuli. The latter included a three-dimensional latex disc, a two-dimensional blue disc painted on a plastic board, or black circles or propeller patterns on white boards. The fish were rewarded with food when they repeatedly tapped the stimulus — not the tube — with their snout or mouth.

The fish rapidly learned this task. The researchers then presented the fish with the original stimulus and one alternative distracting shape — bars versus discs, squares versus discs, or circles versus propellers, and the fish had to nose the shape they had been trained to tap in order to receive a reward. The fish tapped the correct shape about 70 percent of the time in the first trial; this improved to 80 percent and to 90 percent in subsequent trials.

Remarkably, the fish also learned when the food reward was delayed and delivered far from the stimulus. The damselfish exhibited what is called anticipatory behavior, in that they would tap the image and then swim quickly to the other end of their tank in anticipation of their food reward. This response is much like Pavlov’s dogs who learned to anticipate food at the sound of a bell.”

I found this incredible for a couple of reasons.  First, it means I may still be able to actually put additional fish in the aquarium I have on my desk.  See, I have a fish named Fred and Fred is . . . well, he is a cannibal.  He eats everything – snails, crawfish, other fish – I put in the tank with him.  He is not a damselfish, but maybe I can teach him anyway.

The other reason I found this article so interesting is it made me wonder why many employers are treating their employees like fish.  “What?” you say?  How so?  Let me ask you this; do you have a bonus plan?  Does your bonus plan depend on meeting some set of criteria or objectives? You know, do this and get the bonus, don’t and you don’t.  Oh, you can see it now can’t you. It’s all becoming clear.  It’s the end of the year and you sit down with your employees and write objectives.  Then they spend the rest of the year “knocking their noses against a plastic disc” in the hope that they will get the bonus at the end of the year. 

Well, what about all their other job duties.  If they don’t contribute to the bonus, they don’t get knocked with the nose.  We all know this is true and yet we still all continue to use these kinds of plans.  How come?  Because some management theorist 20 years ago told us to?  We need a better reason than that, especially in these trying economic times where every dollar counts.  Here’s what’s even worse:  Almost all the experts that have looked at this sort of reward system agree that it doesn’t really work anyway.  You see, we really are different from the fish.  The fish will live a perfectly content fish life rapping his nose against a plastic dish and getting a fishy treat in return.  Ask your employees to rap their nose long enough, and no bonus will keep them happy.  So why maintain the status quo? 

Let’s try something different.  Let’s get people into their work so they derive some satisfaction from it.  Alina Tegend in the New York Times calls it passion.  Ms. Tegend’s article is written to employees, not employers, but we can take something from it.  She quotes Professor Emeritus Peter Warr of the Institute of Work Psychology at the University of Sheffield in England who says to be happy in work (or anything) your employees need to have “some sense of empowerment, using and expanding [their] skills, enjoying some variety, having a clear sense of [their] situation and what is required, and doing something [they] believe in, . . .” See http://www.nytimes.com/2009/09/26/your-money/26shortcuts.html

I get it, no one works for nothing, and money is an important part of every job.  But are we letting all the other important part fade into the background.  Seems to me to be profitable today you had better have motivated and involved employees.  Also seems to me you are not going to get them with the same old tired systems.  We have to try something new.  We need involved employees who are committed to our company.  I understand that a lot of people are looking for work and that focus on employee satisfaction has lost some of its luster.  It shouldn’t have. 

So what do you do?  Let’s start here:  Next time you sit down with an employee to talk about the job, or goals or pay or a promotion or almost anything else start with this little phrase.  “What do you think?”  Then listen.

Ok I get it, it’s much easier to put up the plastic disc and forget about it until the end of the year.  But if you’re an HR professional, that’s not what you want to do either is it? 

BE CAREFUL WHAT YOU WISH FOR!

So did your mother or your grandmother ever tell you this?  I remember once when I was being a typical petulant little boy (I know all of you who know me are saying:  “Steve, you a petulant little boy, how can that be?”)  Anyway, back to the point of this post.  I remember once when I was being a typical petulant little boy I wished out loud that I was grown up so I didn’t have to listen to my mother anymore. I remember my mom saying “Be careful what you wish for.” Of course I had no idea what she was talking about. After all I must have been only about seven or eight years old.  All of this happened yesterday (at least it seems that way) and now, in the blink of an eye I’m . . . well I’m not seven or eight anymore, let’s put it that way.

I wonder if the Colorado Legislature is feeling like this today.  You see Colorado has an adjustable minimum wage. According to the Associated Press:  “Colorado voters approved an adjustable minimum wage in 2006. Supporters of that amendment said they did not intend for wages to fall, but the provision allowing it to fall was crucial to its passage. They have pointed out employers of the estimated 50,000 to 70,000 Coloradans making minimum wage are free to leave wages flat.” 

I am sure that when they passed this bill the people lobbying for it never dreamed that the minimum wage might fall.  What they wanted of course was a minimum wage linked to inflation so that the minimum wage could rise every year without the legislature or the people of the state having to vote on the increase.  Opps.

But instead, the consumer price index, which is the indicator for raising the minimum wage in Colorado, fell. Now because of this drop in the consumer price index the working poor in Colorado, those 50,000 to 70,000 people making the minimum wage might loose money. 

Now it is not a lot of money, the minimum wage will drop in Colorado from $7.28 per hour to $7.24 per hour, a loss of 4 cents per hour.  But, because the federal minimum wage is $7.25 most people will only loose 3 cents an hour.  To most of us that may not seem like a bunch, after all if you work 40 hours a week you are only loosing $1.20 a week.  But over the course of the year that’s $62.40 and when you make minimum wage, that is a lot of money.  

So?  Be careful what you wish for.  Either that or work for the passage of a better bill.

You can see the AP article at http://www.google.com/hostednews/ap/article/ALeqM5gDANldmlUTUQ0kEwjQAhnnNypxHQD9BABGC00

Oh by the way, I’m not eight years old anymore and I still have to do what my mother tells me to do . . . and my kids think that is just hilarious.

CONGRESS IS AT IT AGAIN

You have all heard about the Lilley Ledbetter Fair Pay Act. It was the very first bill that President Obama signed into law. Ms. Ledbetter was an active campaigner for the President and she was at the bill signing. We also all know that the whole point of the Ledbetter Fair Pay Act was to overturn the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 616 (2007). Congress it seems did not like the fact that the Court felt that Ms. Ledbetter should have brought her complaint when the pay decision was made, not when she got her last paycheck. 

Guess what? Congress is not done yet. Last week, the Wall Street Journal reported that the Senate was considering two bills that would overturn two more Supreme Court decisions.  Senator Harkin introduced S. 1756, the “Protecting Older Workers Against Discrimination Act” and last April Senator Finegold introduced S. 931, the “Arbitration Fairness Act of 2009”. Both Bills have companion bills that have been introduced in the House. 

Senator Harkin’s bill would reverse the Supreme Court’s decision in Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009). Congress it appears does not care for the Court’s holding in Gross that in a mixed motive age discrimination case, age must be a “but for” cause of the adverse employment decision. In fact, the bill’s introduction says that Gross improperly narrowed the protections of the Age Discrimination in Employment Act. The bill would overturn Gross and provide that in mixed motive cases age need only be a “motivating factor” in the adverse employment decision making it much easier for age plaintiffs to prove their case.

Senator Finegold’s bill does not expressly mention a Supreme Court decision but in recent years the courts have upheld arbitration of employment disputes.  S. 931 would prohibit pre-dispute agreements to arbitrate both employment and civil rights disputes among other kinds of disputes. The bill would specifically invalidate these agreements and would apply to any dispute that arises on or after the date the bill is signed into law, regardless of when the agreement to arbitrate was signed. You can see the WSJ article at http://online.wsj.com/article/BT-CO-20091007-711697.html

We will keep an eye on these bills and keep you informed.

YOU’RE GOING TO PAY FOR THAT

Well it must be true.  We have been saying for a while that retaliation claims are on the rise.  I’ve even pointed to these statistics when training managers and HR professionals.  For example, in 1999 25% of the 77,444 charges of discrimination filed with the EEOC had a retaliation claim included.  In 2008, 95,402 charges of discrimination were filed and 35% of them had a retaliation component.  But now The Wall Street Journal is saying it too.  In fact, according to The Wall Street Journal, if you take a look back to 1992 when the government began tracking these statistics, you would see that retaliation complaints have just about tripled.  (See “Employee Retaliation Claims Rise” C. Tuna, The Wall Street Journal, pg. B.1. October 5, 2009.)

                        So, what exactly is a retaliation claim?  Well, remember a while ago when we talked about how to lose an ADA case even when the plaintiff does not have a disability?  Well, this is sort of the same thing, a whole new way to lose a discrimination suit even when you didn’t discriminate.

                        In simple terms, retaliation occurs when you do something bad to someone who is exercising his or her rights under one of the civil rights laws—Title VII, the ADEA, the ADA, you know, one of those.  A bunch of recent court decisions have made it a lot easier for plaintiffs to prove that you did something bad and have really made it a lot easier for the plaintiff to prove that the something you did was “bad.”  “The Supreme Court in Burlington Northern v White eliminated the ‘adverse employment action’ requirement, lowering the bar for plaintiffs who make retaliation claims. Instead, the Supreme Court held that a retaliation claim could be supported if the employer engaged in any act that might dissuade a reasonable worker from making or supporting a discrimination complaint.” 

See http://www.wnj.com/publications/detail.aspx?pub=383#lower_performance_evaluation

                        That’s right.  Take some action against someone who files a complaint and if a “reasonable person” thinks it would keep the next guy from filing a charge of discrimination and you have retaliated.  Who you ask is this “reasonable person.”  We can spend a lot of time discussing this nice legal fiction but what it boils down to is the jury is the reasonable person. 

                       So how do you prevent these claims?  You don’t. What you have to do is set yourself up so if you do get a charge of retaliation, you can defend yourself and ultimately win.  If one of your employees files a charge of discrimination or participates in an investigation of a complaint, be sure to treat them just like you would treat an employee who did not file a charge or participate in that investigation.  And train your managers to do the same.  Oh, yea, if you do need to do something to an employee who has filed a charge, even if it is something that seems completely fair, you might want to give us a call before you do.  Remember, all you have to do to lose is do something that would make a reasonable person not file a charge of discrimination

LATE NIGHT SEXUAL HARASSMENT?????

We’ve all heard about David Letterman’s “confession” on his show last week.  Admit it, you either saw it live or you went on You Tube and checked the video out.  So, Mr. Letterman had an office romance with a woman who worked for him.  Big deal you say, lots of people do that.  True.  But it is not often that we lawyers get to use such a big celebrity as an object lesson.  Besides, there are a bunch of legal issues associated with this thing that must be giving bloggers like me heart palpitations.

 The alleged extortion angle is interesting, but it is a bit outside of my area of expertise.  I don’t know what happened with Mr. Letterman and I sure don’t know all the facts, but I do want to talk about office romances between supervisors and subordinates, so we are going to focus on the office romance side of this thing.  What if a supervisor has a sexual relationship with a subordinate?  Is it sexual harassment?

 Well, that depends. 

 The federal definition of sexual harassment is:

 Sec. 1604.11  Sexual harassment.

“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

Now we don’t have to get too far into that definition to pause.  It says “Unwelcome” sexual advances blah, blah, blah.  A consensual relationship between two adults isn’t “unwelcome” is it?   Generally, no.  But here is where the whole thing gets complicated by the supervisor subordinate thing.  The EEOC says:

 ”In Vinson, the Supreme Court made clear that voluntary submission to sexual conduct will not necessarily defeat a claim of sexual harassment. The correct inquiry “is whether [the employee] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.” 106 S. Ct. at 2406 (emphasis added). See also Commission Decision No. 84-1 (“acquiescence in sexual conduct at the workplace may not mean that the conduct is welcome to the individual”).”

 See http://www.eeoc.gov/policy/docs/currentissues.html

You see, whenever a supervisor and a subordinate have a relationship, it is possible for the subordinate to feel pressured, to feel like he or she needs to comply with the bosses “requests” or bad things will happen.  If that is the case, then the conduct is unwelcome. 

 The moral of this little story is what then?  Let me tell you (I read this in a handbook once):  Think before you enter into that office romance.  It probably seems like a really good idea right now.  It probably won’t seem like such a good idea when it ends or when someone you work with finds out.  And if you are a supervisor, don’t date your subordinates.  It’s a bad idea, don’t do it.

$6.2mil says 12 may not be enough

Back in August we told you about an EEOC case against UPS for for violating the ADA and terminating an employee after she had used up her 12 month leave entitlement.  See http://negotiumlex.wnj.com/?p=45  Well, the EEOC is at it again.  A couple of days ago the EEOC issued a press release titled:  SEARS, ROEBUCK TO PAY $6.2 MILLION FOR DISABILITY BIAS   You can see the press release here http://www.eeoc.gov/press/9-29-09.html

The EEOC had accused Sears of maintaining an “inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.” 

Also according to the press release, “Regional Attorney John Hendrickson of the EEOC Chicago District Office said pre-trial discovery in the lawsuit revealed that hundreds of other employees who had taken workers’ compensation leave were also terminated by Sears without seriously considering reasonable accommodations to return them to work while they were on leave, or seriously considering whether a brief extension of their leave would make their return possible.”

The settlement, according to the EEOC is the largest settlementof an EEOC ADA case in the statutes’ history.

Now don’t forget, most courts and even the EEOC itself continue to maintain that you do not need to provide “indefinite leave” as a reasonable accommodation.  See the EEOC Fact Sheet on “Applying Performance and Conduct Standards to Employees with Disabilities” (2008) at Q. 21 www.eeoc.gov  So it looks like you don’t have to keep employees on the payroll forever.

But, what is indefinite and what is not?  Beats me, but I’ll try:   If the employee needs an extra 2 weeks the EEOC will presumably say that is not indefinite.  An employee’s doctor saying we don’t know when the employee will be back if ever, probably is.

I know what you are saying, “Nice news but other than scaring the heck out of me what do I take from this?”  Well first thing we should do is take a look at the language the Regional Attorney for the EEOC used.  He said, Sears failed to “seriously consider” reasonable accommodation and failed to “seriously consider” whether a brief extension was possible.  So, it seems to me here is what is really important and what you should take from all of this:  ENGAGE IN THE INTERACTIVE PROCESS WITH EVERY EMPLOYEE WHO REQUESTS AN ACCOMMODATION.  Once you have done that then you need to make an individualized determination as a result of engaging in the interactive process for every request for leave as an accommodation.  Don’t treat every request exactly the same, it can only get you in trouble.